Thank you for visiting our News Archive page.

We have included below our archived news items which we hope will be of interest. As we have sent
out numerous news updates over the last few years, not all of our news items are archived on this site.
If there is a particular news item that you are looking for and you are unable to find it on our site, please
feel free to contact us and we will forward the item on to you by email.

16 April 2009 - LSC Statement on Consortia

Many legal aid providers have been preparing for the forthcoming civil bid rounds and clarification was sought by representative groups on the LSC's views on consortia. The LSC has sent the representative groups a statement which sets out its current thinking. The statement will be shortly made available to all providers on the LSC's website but, in the meantime, can be viewed by clicking here.


1 April 2009 - Phase 1 Civil Fee Schemes Review: Consultation

The LSC has launched a 6 week consultation on Phase 1 of the Civil Fee Schemes Review setting out proposed amendments from 2010.  The consultation runs until 13th May 2009.

The consultation focuses on proposals for two amendments to the civil fee schemes: 

• personal injury - the introduction of a tolerance fee and tolerance exceptional case threshold, and an increased fixed fee and exeptional threshold;
  
• family public law care and supervision cases - a separate preparation fee for in-house advocates. 

The LSC is not proposing any other amendments to the Phase 1 Fee Schemes in addition to the above.

Further details about the proposals is available from the LSC by clicking here. 

We have also produced a very short précis of the consultation paper. Please click here to download a copy.


31 March 2009 - VHCC (Crime) Panel

The LSC have decided not to proceed with the options outlined in the recent consultation. Instead, they will be extending the current scheme by 12 months.

Chief Executive Carolyn Regan said:

“Having reviewed the responses to the consultation and having sought the views of the Working Group, the LSC has decided not to implement either of the VHCC payment mechanisms suggested. Along with the other members of the Working Group we will continue to work towards an acceptable replacement scheme. However, it seems that this work may not be completed in time to be brought into force immediately before the scheduled end date of the existing VHCC Panel Contracts on 13 July 2009. To ensure continuity, we are extending the current interim scheme for a further 12 months.”

For further information, please see: http://www.legalservices.gov.uk/criminal/cds_news_9428.asp

31 March 2009 - Best Value Tendering (Crime)

The LSC have published their second consultation paper setting out plans for tendering of criminal defence work in police stations and magistrates’ courts.

The proposals explain how they wish to move from the present system of administratively set fees to a system whereby providers set their own fees through competition while maintaining the required high quality.

Under the proposals, two criminal justice system areas will pilot the tender mechanism - Greater Manchester and Avon & Somerset - with tenders starting in Oct 2009.

We have written a two page précis of the proposals. Please click here to download a copy.

Further information on the LSC website is here: http://www.legalservices.gov.uk/aboutus/whats_new_9421.asp


31 March 2009 - Law firms to allow non-lawyer partners

Different types of lawyers and non-lawyers can now jointly own legal firms, after restrictions on the way the firms operate were removed. The MOJ hope that this will encourage more effective competition and these firms will be able to provide a range of legal services to consumers, increasing access to justice.

For the first time, by forming Legal Disciplinary Practices (LDPs), law firms can be owned by different types of lawyers, and a proportion of non-lawyers. LDPs are a stepping stone on the road to alternative business structures, which will allow for full non-lawyer ownership and for law firms to be listed on the Stock Exchange.

For further information: http://www.justice.gov.uk/news/newsrelease310309b.htm


Legal disciplinary practices permitted from 31 March 2009

The Law society has issued its own advice on the implementation of the new rules allowing law firms to take non-lawyers on as partners which came into force on 31 March 2009. The rules also implement firm based regulation which requires all legal practices to be regulated as firms, regardless of size.

The Law Society has issued two practice notes giving an overview on the requirements imposed on firms. To download a copy, please visit the Law Society's website at: http://www.lawsociety.org.uk/newsandevents/news/view=newsarticle.law?NEWSID=418706



MLRO Free Networking Groups
 
The Law Society has announced that it is running a series of free Money Laundering Reporting Officer (MLRO) networking groups around England and Wales.

The groups are intended to offer an opportunity for MLROs in law practices to discuss the challenges they face with anti-money laundering compliance. The events will also provide an update on current Law Society activities, recent case law and new methodologies.

The events are free and each event qualifies for 2 hours CPD.

For further information or to book your place, please go to: http://www.lawsociety.org.uk/newsandevents/news/majorcampaigns/view=newsarticle.law?CAMPAIGNSID=217590

17th July 2008: The way ahead for Criminal Defence Best Value Tendering

The LSC has published their response to their consultation on Best Value Tendering (BVT) for criminal defence services. 
https://consult.legalservices.gov.uk/inovem/consult.ti/bestvaluetendering/listdocuments

The LSC proposes to: 

•  undertake further work on the design of a pilot for a competitive system and consult on this towards the end of the year with  an updated impact assessment,  
•  maintain the present system of fixed fees while work is undertaken on designing and, if introduced, assessing an effective competitive process, 
• carry out no further work at present on the option of an expanded Public Defender Service.   

Second Consultation 
A second consultation on BVT is proposed for December 2008, ending in March 2009.  It is proposed that the open tender for the pilot will not be before July 2009.

Criminal Legal Aid Route Map
The LSC have also published a Route Map of developments in Criminal Legal Aid in the next 12 months.  The Map will be updated regularly and will be made available on the LSC website.  The current timeline for reform is: 

July 2008
- Publication of response to the December 2007 consultation Best Value Tendering of Criminal Defence Services 

Late 2008
- Publication of consultation on piloting a full means test in the Crown Court 
- Publication of consultation on Crown Court remuneration 
- Publication of second best value tendering (BVT) consultation and updated impact assessment – covering detailed options and implementation plan for Crime BVT and the award of new Unified Contracts from 2010
- Publication of consultation to reform Prison Law legal aid work 
-  Possible consultation on VHCC Panel II 
- Quality Working Group – jointly chaired by the Law Society and LSC – publishes its report and recommendations 

Early 2009
- Pilot of Quality Assurance for Advocates scheme
- Publication of response to the consultation on Crown Court means testing 

March 2009
- Government and LSC respond to the recommendations made by the Quality Working Group No earlier than 30 June 2009
- Advocates’ Graduated Fee Scheme transferred to LSC 

June 2009 - Dec 2009
- Potential pilot for full means testing in the Crown Court 

July 2009
- VHCC Panel 1 ends 

2010
- Current Unified Contract comes to an end and new contract awards come into effect     

Please see link below for more information: http://www.legalservices.gov.uk/docs/criminal_contracting/CDSRouteMap_160708.pdf.pdf

14th July 2008: New Civil Bid Round

The LSC has released details of the new bid rounds.

Family/Social Welfare Law Bid Round

The LSC has opened its bid rounds to award contracts in:

• specialist advice in domestic abuse
• specialist advice in public law children.

It is inviting tenders to deliver family and/or social welfare law services (a minimum of 3 social welfare law categories from debt, housing, welfare benefits, community care and employment) in specific procurement areas across England and Wales.  The LSC has produced a summary of the tender process and the invitations to tender: http://www.legalservices.gov.uk/docs/civil_contracting/SummaryofInvitationstoTender_090708.pdf

This is an open tendering process. All firms or agencies that meet our quality standards can apply, currently contracted or not.  Successful organisations will also be authorised to provide representation to eligible clients in certain categories of law.

Tender Documents

There are different tender application forms and information for applicants documents for each procurement region (Brighton, Bristol, Cambridge, East Midlands, London, North East, North West, Reading, West Midlands and Yorkshire & Humberside). 

Copies of the documents can be downloaded from the following webpage on the LSC's website:

http://www.legalservices.gov.uk/civil/tendering/civil_bid_rounds_2008.asp

Closing date

The deadline for submitting tenders is 7 August 2008.

Family Mediation

It is also inviting Expressions of Interest in the provision of Family Mediation services. http://www.legalservices.gov.uk/docs/cls_main/Appendix_Five_Family_Mediation_Expression_of_Interest_Form_090708.pdf

Immigration Bid Round

The LSC will also be inviting tenders to provide immigration advice by telephone to individuals detained at police stations and face-to-face immigration advice at Immigration Removal Centres (note that organisations that submitted bids in November 2007 will need to submit a fresh tender in accordance with the new information for applicants). Invitations to tender will be announced on 22nd July 2008 for contracts that will run from 27 October 2008 – 31 March 2010.  More information will be published on the LSC website at http://www.legalservices.gov.uk/civil/tenders.asp 

9th July 2008: Law Society Practice Note on Client Care Letters

The Law Society has issued another practice note in its client care range, this time focusing on client care letters.

The practice note provides examples of how you can clearly and effectively communicate to clients all the information required under rule 2 of the Solicitors' Code of Conduct.

In addition to general guidance, there are some suggested paragraphs for client care letters and/or terms of conditions which might be useful.

This guidance represents the view of the Society on what a standard of good practice in a particular area is.  It is certainly not mandatory to follow the guidance but there are obvious benefits to following the guidance so far as possible. 

Below is the link to the relevant page of the Law Society's website from which you can review the guidance:

http://www.lawsociety.org.uk/productsandservices/practicenotes/clientcareletters/848.article

4th April 2008: The New Unified Contract (Crime) July 2008

The LSC has announced that law firms will be able to apply from next week for new 18 month legal aid crime contracts from July.

The Unified Contract (Crime) July 2008 is based on the Unified Civil Contract. 

The Standard Terms are closely based on those for civil providers but have been amended and updated for crime providers. 

The Specification is largely unchanged from the Specification in the General Criminal Contract (January 2008).

Following the consultation with the Law Society, key changes to the new contract include:

• A new SMP Reconciliation Protocol for managing Standard Monthly Payments which should give providers more certainty and stability in their monthly payments
• The introduction of new provisions on remainder work, including a presumption that providers may continue remainder work for up to two years following termination of the contract (unless terminated for breach)
• The removal of the requirement for providers to record travel costs/time in relation to matters and cases which are paid by fixed fees
• The removal of the automatic financial penalties for claims which are submitted more than three months late (although it is still a contractual requirement to submit claims on time).

The LSC's powers to amend the contract are now limited to:

• changes arising out of external developments in the law or the justice system
• minor changes
• with the agreement of The Law Society, correcting ambiguities, errors and omissions.

The LSC has now agreed that, for the Unified Contract (Crime) July 2008:

• there will be no change to the way in which Duty Solicitor Slots are allocated
• it will not introduce a new performance requirement for Panel and Back-up Duty Call Acceptance
• it will not introduce Audit KPIs
• it will not introduce re-accreditation of Duty Solicitors.

The new contract will be issued to the whole organisation taking on publicly funded criminal defence work rather than to individual offices.

Current providers who do not apply will not be able to take on new publicly funded work from 14 July 2008.

Application Process

The application process will start next Monday (7th April).  Full details of the application process, and application forms will be sent to all current General Criminal Contract holders during the course of next week.  It is not designed to be a competitive process and will be similar to the application for the January 2008 contract.  Current contract holders need only (by the closing date):

• complete an application form (Only one application form is required per organisation – you will need to list all offices on that form); and
• submit this along with supporting Duty Solicitor forms

New applicants are also welcome to apply for this contract and application packs (with slightly different application forms) will therefore also be available online.

Q&As and further information will be posted on the LSC's website from time to time.

If providers can get their applications in early (by 21 April), they will be checked by LSC staff for completeness and acknowledged.  Applications submitted by 28th April will be acknowledged (but not checked for completeness).  Applications submitted after 28th April, will not be acknowledged.  The final deadline for submitting applications will be 4pm on 2 May. 
 
Confirmation of the award of contracts will be by 13 May.  Rotas will be published by 14th June for period commencing 14 July 2008.

Termination of the January 2008 Unified Crime Contract will be Midnight on 13 July and the new contracts will commence on 14th July.

Further information can be found on the LSC's website at: http://www.legalservices.gov.uk/criminal/tendering/unified_contract_crime_july_2008.asp

2nd April 2008: Settlement agreed between Law Society, LSC and MoJ

A settlement has been finally agreed between the LSC, the Law Society and the Ministry of Justice about the consequences of the judgment of the Court of Appeal on the civil legal aid contract.

A joint statement has been issued.

Details of the settlement on the LSC website are sketchy at this stage. See:  http://www.legalservices.gov.uk/civil/cls_news_7929.asp?page=1

On the Law Society’s website, the details of the settlement are more specific and a copy of the full settlement deed is also available. See http://www.lawsociety.org.uk/newsandevents/pressreleases/view=newsarticle.law?NEWSID=394906

The Law Society say that their negotiations have succeeded in securing the following concessions:

- an increase of 2% on all legal help fixed fees and underlying hourly rates from 01/07/08
- care level 2 fee increases from £347 to £405
- a 5% increase in CLR (controlled legal representation) fees and rates for mental health
- a 5% increase in CLR fees and rates for immigration
- a delay in implementing private law family litigators' graduated fees
- a closed list of all CLACS and CLANS (Community Legal Advice Centres and Networks) planned for the period ending April 2010
- the LSC will, with effect from today, not seek to recoup historic unrecouped payments on account over six years old and where the amount outstanding is less than £20,000 – restrictions apply (details to appear on the Law Society website)
- a new process on standard monthly payments, designed to prevent changes happening so often, so unpredictably and with such large variations

The Law Society also state that other key features of the agreement include the LSC's commitment to publish a route map setting out the outline of its proposals for the next five years, including a commitment that there will be no price competitive tendering for civil or family work before 2013. (However, the LSC’s website states that there will be pilots between 2010 and 2013). There will also be reviews of the contract compliance audit process and the operation of peer review and other quality assurance mechanisms.

Finally, Best value tendering (BVT) in criminal legal aid will be delayed by six months to a date not before July 2009.

Click on the link below for oour summary of the deed of settlement.  This summary is designed merely to advise you of the key matters agreed and we would advise you to consult the full document for further details or clarification on any point.

summary of 2nd April 2008 settlement deed between Law Society and LSC

2nd April 2008: New Civil Legal Aid Changes

A number of changes to civil legal aid have been introduced today by the LSC. These changes which I had previously understood were planned to take effect from 1 April will now be mandatory for any new cases opened on or after 7 April 2008. These changes include:

• uprating of income limits
• means exemption for expectant parents in potential public law proceedings
• a new power to reassess cases at all levels of service (including legal help) due to a change of circumstances
• a power to call for a retrospective contribution from previously passported clients
• the statutory charge - inclusion of disbursements in exceptional family help cases

This will mean that you will need to change your office procedures and client care letters to comply with these changes. Retainer clients will receive updated procedures/letters automatically from us.

A more detailed précis of these changes appears below

1          Uprating of Income Limits

For all applications and further assessments made on or after 7 April 2008, the new gross income limit is £2530 per month. A higher gross income limit applies for families with more than four children, with an increment of £211 for the 5th and each additional child. Clients with income above the gross income cap will be refused funding without the need for a full assessment.
Where a client’s gross income is £2530 or below, disposable income will need to be assessed. The new disposable income limit for applications and further assessments made on or after 7 April 2008 is £698 per month.

2          Means Exemption for Expectant Parents in Potential Public Law Proceedings

The eligibility rules have been amended to include potential parents within the means exemption for pre-proceedings advice i.e. any person who will be the mother or father of the child who will have parental responsibility for the child within the meaning of the Children Act 1989. This new provision will ensure that any potential parents who are currently ineligible for public funding can receive non-means tested advice where necessary.

3          A new power to reassess cases at all levels of service (including legal help) due to a change of circumstances
There is now a new power to complete a reassessment of means following a change of circumstances for lower levels of service (including Legal Help) that are assessed by suppliers. Regulation 15 of the CLS (Financial) Regulations 2000 as amended extends the ability to reassess means following an increase in capital or income to all levels of service including Legal Help; however it is expected that for these lower levels of service this power will be used in very limited circumstances. This is because Regulation 15(6) provides discretion not to carry out a reassessment if the assessing authority (in this case the supplier) considers such a further assessment inappropriate, having regard in particular to the period during which funded services are likely to continue to be provided to the client. Given this discretion a further assessment for lower levels of service such as Legal Help will only be required if the client’s circumstances have changed dramatically e.g. where there has been a lottery win or inheritance received, or where funding is likely to continue for 3 months or more after a significant change in circumstances.

4          A power to call for a retrospective contribution from previously passported clients
This power applies to contributory levels of service Family Help (Higher) and Legal Representation where the LSC is the assessing authority. Where a client is originally assessed as eligible for funding (under Regulation 5), if upon further assessment their income or capital exceeds the eligibility limits their funded certificate will be discharged. However, where the reassessment is due to the receipt of capital the LSC has discretion to call for a contribution from this capital to cover the costs previously incurred under the certificate prior to its discharge.

5          the statutory charge - inclusion of disbursements in exceptional family help cases
From 7 April the financial regulations are also amended in relation to the treatment of the statutory charge in cases concluding at the Family Help (Lower) level, in respect of disbursements.
The position with such cases remains that the statutory charge will only arise if the case escapes the Family Help (Lower) Standard Fee by virtue of its profit costs exceeding the Exceptional Threshold. However, where the statutory charge does arise, it will now include the value of the disbursements in the case, in addition, as before, to the excess of the profit costs over the Exceptional Threshold.

14th March, 2008: Revised CDS6 Guidance

The LSC has announced that it has updated the CDS6 Guidance in terms of:

- the schemes that some police stations were listed under;

- missing police stations;

- closed police stations; and

- re-naming police stations to a new or corrected name.

These changes now reflect the current position, although the LSC says that it expects that it will have to make further changes due to police stations closing and opening.

The recommendation is that, from today, you start using the updated version of the CDS6 Guidance.

If you have used the ‘old’ codes since 14 January, the LSC has confirmed that you will be paid the correct level of fee. It has said that it will correct any incorrect old codes and re-price them if necessary, to ensure you are paid the correct Fixed Fee.

The date for when you can no longer claim using old or incorrect codes is 31 May. Any incorrect codes used after that date will not be re-priced and you might not be paid the correct Fixed Fee.

The revised guidance can be found on the LSC's website or by using the following link:

http://www.legalservices.gov.uk/docs/forms/CDS6_Guidance_v.1.2_140308_(363_kb).pdf

14th March, 2008: Quality Workshops

In April and May 2008, the LSC in conjunction with Advice Services Alliance will be hosting a series of quality workshops.

The workshops will be led by peer reviewers and will cover the following topics:

immigration
housing
debt
welfare benefits.

They are being held in Manchester, Birmingham and London from 14th April to 21st May. The costs is £70.50 inc VAT per workshop and CPD points are available.

For a full list of the dates and a copy of the application form, please see the LSC's website: http://www.legalservices.gov.uk/civil/cls_news_7850.asp?page=1 or use the following link:

http://www.asauk.org.uk/fileLibrary/pdf/PR2008.pdf

4th March, 2008: Ministry of Justice consultation on new procedural code for family proceedings

The Ministry of Justice (“MoJ”) has published the responses to the consultation on new procedural code for family proceedings – the ‘Family Procedure Rules’. The rules are intended to create a unified code of practice and procedure along the lines of the existing Civil Procedure Rules.

The consultation paper set out the following four objectives of the new rules:

·- Modernisation of language
- Harmonisation with the Civil Procedure Rules
- A single unified code of conduct
- Alignment of procedures in all levels of court

The responses to the consultation will be used by the Family Procedure Rule Committee in the production of a draft set of Family Procedure Rules. Several issues were raised in the responses which have been incorporated into the rule making process. The issues were as follows:

· Electronic service of documents

Although this was supported by many respondents, given the more personal nature of family proceedings many favoured more stringent restrictions on its use than in civil proceedings. The responses will be considered and taken into account by the MoJ and the Family Procedure Committee.

· Proposed amendments to terminology

All of the proposed changes to terminology will proceed with the exception of the term ‘maintenance pending suit’. The MoJ will work with the Family Procedure Committee to formulate a clearer term.

The broad term ‘respondent’ will be adopted instead of ‘co-respondent’ and ‘party cited’. However, due to the responses received in respect of adultery, the term ‘2nd respondent’ would achieve greater certainty for parties previously known as ‘co-respondent’ and ‘party cited’.

· Application by respondent for a matrimonial or civil partnership order

The new proposed time limit will be adopted in the new rules.

· Parties to Proceedings – divorce cases involving allegations of adultery

The proposal to use a practice direction as a barrier against naming a person with whom it is alleged that the respondent committed adultery should be proceeded with. Where an applicant does name the person with whom the respondent is alleged to have committed adultery with, that person ought to be made a party to the proceedings automatically to provide them with the opportunity to refute the allegations made against them.

· Extending the Special Procedure to Applications for the Annulment of a Marriage or a Civil Partnership

The rules will be adapted to allow for the court to make a nullity order without the hearing of oral evidence but with the discretion of the court to require a hearing.

· Statement of Arrangements for Children

It is proposed that the statement of arrangements for children remain a separate document but that it should be made shorter. The document will also be amended to include a question identifying the gender(s) of the children.

· Statement of Truth instead of Affidavits

Affidavits will be replaced with statements of truth in line with the view of the majority of respondents.

· The effect of failing to verify a document with a statement of truth

It is proposed that courts could rule that evidence or witness statements submitted without a statement of truth are inadmissible; and the courts could order the verification of a document by way of statement of truth.

· Application of Ancillary Relief Rules to other financial proceedings

Following support from respondents, it is proposed that ancillary relief rules should apply to applications made under the following:

Section 27 Matrimonial Causes Act 1973
Part 9 of Schedule 5 to the Civil Partnership Act 2004
Part III of the Matrimonial and Family Proceedings Act 1984
Schedule 7 to the Civil Partnership Act 2004
Section 35 Matrimonial Causes Act 1973
Paragraph 69 of Schedule 5 to the Civil Partnership Act 2004
Schedule 1 to the Children Act 1989
Financial Proceedings in Magistrates’ Courts

In light of the comments received the MoJ will be giving further consideration to the principle of alignment between the magistrates’ courts and county courts/High Court. In particular they will consider whether complete consistency between the levels of court can be achieved and whether any adjustments to the Form E are essential.

· Making an application for a financial order

It is proposed that financial applications will be separated from the matrimonial/civil partnership proceedings. However, a link may still be preserved in the application form through the use of an equivalent to the “prayer”.

· Children’s Proceedings – case management tools

From 1 April 2008, the Protocol for Judicial Case Management in Public Law Children Cases will be replaced by a Practice Direction issued by the President of the Family Division which will incorporate a new Public Law Outline. This will therefore be reconsidered later in the year.

· Children’s Proceedings – forms for applications under the Children Act

A separate form will be developed for care and supervision applications.

· Family Proceedings in the Magistrates’ Court

The proposal to align procedures in the magistrates’ court with the procedures in the county courts and High Court will be taken forward, in particular it is proposed that procedures and powers will be aligned in the following areas:

to order disclosure against a third party to stay proceeding
to issue a witness summons
appointing, changing and removing a solicitor· authenticating documents
providing for evidence by way of affidavit (although it is envisaged that use of affidavits will be limited)
Provision of written reasons in the Family Proceedings Court

It is proposed that the current procedure be adjusted to allow the justice or justices to announce a decision, give the parties the order with a summary of reasons for the decision and supply full written reasons by the end of the day wherever practicable.

· Appeals

The following is proposed:

- a single form of appeal notice should initiate all appeals from decisions of magistrates’ courts in family proceedings,
- the route of appeal from a family proceedings court be changed from the High Court to a county court to be heard by a circuitjudge, and
- appeals from decisions of a family proceedings court by way of case stated be abolished.

The summary of responses can be accessed by clicking on the following link:

http://www.justice.gov.uk/docs/cp1307resp.pdf

27th February, 2008: Criminal Legal Aid Consolidated Guide

The Legal Services Commission has updated their criminal legal aid guidance. The manual is primarily aimed at HMCS staff, however it provides useful guidance to criminal defence solicitors on the procedure for applying for and granting criminal legal aid in the Magistrates’ Court.

The following information has been updated in the manual:

- Representation orders
-Committals for trial/sentence
- Appeals to the Crown Court
- Applicants in custody

The following annexes have been added to the manual:

- New means assessment and appeals tool (MAAT) functionality
- Referrals to National Courts Team (NCT)
- Retention of files and evidence
- Form guidance

The LSC will be providing a detailed summary of the amendments and a hard copy of the inserts at the end of February.

The table of contents in the manual appears at the end of this email.

The manual can be accessed at the following link:

http://www.legalservices.gov.uk/docs/cds_main/GuidanceNov07v014_FINAL_full.pdf

Best Value Tendering

The Law Society has released a survey recently carried out which has highlighted a lack of support for best value tendering across the profession. The full survey can be accessed at the following link:

http://www.lawsociety.org.uk/documents/downloads/dynamic/bvt_survey_results_feb08.pdf

13th February, 2008: New Q&A, New Forms and a Precis of the draft Unified Contract Standard Terms

Q&A
The LSC has released an updated version of their Q&A document which includes various scenarios covering whether more than one fee may be claimed. It can be accessed here: http://www.legalservices.gov.uk/docs/cds_main/PS_Fixed_Fees_QandA_12_Feb_08__(109kb).pdf

New Forms
New CDS Forms are being produced which must be used from 1 April. Further details are here: http://www.legalservices.gov.uk/criminal/cds_news_7761.asp?page=1

Draft New Unified Contract (Crime - Standard Terms)
We have prepared a précis of the draft Unified (Crime) Standard Terms. It is attached. To view a copy of the various draft documents, please see the LSC's website at: https://consult.legalservices.gov.uk/inovem/consult.ti/cds.contract/listdocuments

One of the key changes is the introduction of Key Performance Indicators. A table in the above attachment summarises what these KPI’s are.

31st January, 2008: Law Society's action against the LSC

As you may know, there has been a major new development in relation to the Law Society's action against the LSC in relation to the Unified Civil Contract and in particular, its claim of a unilateral right to amend the Contract.

The Law Society has announced in the last few days that it is about to issue further judicial review proceedings to oblige the LSC to comply with the Court of Appeal judgment handed down last November.

For the benefit of those who may like a little more information, set out below is a summary of the issues which may help put this in some context.

We will obviously keep you updated as developments unfold.

Summary

Last November, the Court of Appeal handed down a judgment upholding a claim brought by the Law Society. It held that the LSC's reserved power to insert new technical specifications into the Unified Contract and to amend any existing specifications without any restriction was in breach of procurement rules as it did not allow a potential service provider to determine in advance the performance and functional requirements it may in fact be obliged to comply with during the contract period. What this meant in practice was that the LSC could no longer exercise the power which it had reserved to unilaterally amend the unified contract as it had previously anticipated.

Counsel instructed by the Law Society subsequently advised that the appeal result meant that the LSC could not seek to take advantage of, or to continue to rely on, rights under the Unified Contract that had been found to be incompatible with the EC transparency regulations governing public contract procurement. In short, it advised that the changes to the Contract introduced in October 2007 should be treated as being of no effect. The Law Society therefore wrote to the LSC to demand that it rescind the October 2007 amendments, including the civil and family fixed and graduated fee schemes so as to nullify the effect of the alleged unlawful action.

The LSC's response before Christmas indicated that it accepted that it could no longer rely on clause 13.1 in the Unified Contract. However, it did not accept that the judgment obliged the LSC to bring the Unified Contract to an end only that a formal amendment (to clause 13.1) would need to be considered. The LSC appeared to indicate that it accepted that the introduction of the civil specification may not have been justified under clause 13.1. However, it alleged that the October 2007 changes and, in particular, the introduction of the payment annex was a necessary response to the Community Legal Service (Funding) Order 2007 which came into force on 1st October 2007. Such amendments were, it alleged, permissible under clause 13.2 of the Contract. Clause 13.2 permits amendments to take account of legislative changes and was not governed by the judgment.

The Law Society did not, unsurprisingly, agree with this. The Society's position appears to be that the Funding Order cannot be relied on to make changes to the Unified Contract as the Contract had already been entered into before the Order came into effect. The Society also argue that there is no evidence to suggest that the October amendments were made under clause 13.2 in order to comply with the Funding Order and even if they were made under clause 13.2, there is a requirement (in clause 13.3) for a consultation on any amendments effected under clause 13.2 which was not carried out.

There had subsequently been a number of letters exchanged and meetings held between the parties without an agreement being reached.

On the last working day before Christmas, the LSC announced that as a result of the uncertainty and because of the risk of further litigation, it intended to terminate the Unified Contract and ask each provider to submit a new bid for a revised Unified Contract. The fixed fee schemes that were introduced on 1 October would, it said, continue to apply.

Further litigation

Unfortunately, it would appear that there will be another period of uncertainty as the Law Society will now be issuing further proceedings against the LSC. The Society is seeking a declaration that the amendments purportedly made by the LSC were ineffective and a breach of European law and a declaration that the LSC's failure to nullify the consequences of its breach of European law is itself a breach of European law. It will also seek guidance on how the LSC must remedy those breaches.

Three law firms (Fisher Meredith LLP, Kaim Todner LLP and Farrell Matthews & Weir) are also bringing test cases against the LSC, supported by the Law Society, claiming financial loss due to the LSC's contract amendments.

A copy of the Law Society’s letters of claim are available on their website at: http://www.lawsociety.org.uk/newsandevents/news/view=newsarticle.law?NEWSID=382948

31st January, 2008: Payments on account

The LSC is conducting a national review of outstanding payments on account.

For most cases, solicitors can provide the information needed to close cases and reconcile the payments on account quite easily. However, appreciating that making reports on older cases (particularly where files are no longer available or where a practice has merged) is more difficult, the LSC has introduced new procedures to help practitioners conducting civil cases to either submit a final claim for costs or to make a report on case, before the effluxion of time makes it difficult for a claim or report to be made.

This guidance has been released with the agreement of the Law Society.

Reminder letters

If the LSC has not received a final claim for costs or report within twelve months of certain 'trigger' events occurring in a case (such as where a certificate has been discharged or revoked, if a decision on the statutory charge has been made, if monies have been paid on deposit into the fund or if a case has not moved on the LSC's computer system for a year), the LSC will write to the solicitor with conduct, to seek a report as to when a final bill or report will be received.

Annotated BACS statements

As from April 2008, when a final bill is paid, the LSC will annotate its BACS statements using the term 'Final Bill', to confirm against each of the certificates listed that a final claim has been paid and the payments on account have been reconciled. If a payment is reconciled other than through the normal billing process, BACS statements will be annotated with the term 'POA Closed'. Where either annotation appears against a particular certificate, the solicitor can be assured that there is no longer a payment on account outstanding against the certificate concerned.

Mergers or take overs

When a practice intends to merge with or take over another and one or both practices have a legal aid account, the LSC should be notified at the earliest possible opportunity. It will then provide each of the firms involved with details of all outstanding payments on their account or accounts. The LSC Account Manager will ask the firms involved to agree and confirm who will be responsible for any inchoate liability to the LSC that might arise from the payments outstanding. The LSC will not necessarily seek to recover or reconcile all payments outstanding before a merger or takeover happens. However, firms should be aware that a merger or takeover is likely to prompt a payments on account review.

To view a copy of the full guidance, please see the LSC's website at: http://www.legalservices.gov.uk/docs/civil_contracting/payments_on_account_guidance_280108.pdf

28th January, 2008: Defence Solicitor Call Centre (DSCC) Update

Since Monday 14th January, the DSCC has been handling all requests for publicly funded legal advice at police stations.

As we confirmed in our previous update, there appear to have been more than a few teething problems.

In an update on its website, the LSC has confirmed that it has taken action to address the issues raised. It has also published some performance statistics for the period 14.01.08 to 17.01.08 and these can be found at: http://www.legalservices.gov.uk/docs/criminal_contracting/DSCCStats180108.pdf

LSC says that it is also listening to feedback from professional bodies, the police and providers and as a result of such feedback, has introduced the following changes to the wording used by the police to inform detainees of their right to legal advice:

From midnight on 17 January 2008, the police have been asking detainees “Do you want legal advice?” And if yes, “Do you want a named solicitor?”

The police will then pass all requests for advice to the DSCC to allocate to the named solicitor or the duty solicitor.

Further information can be found on the LSC's website at: http://www.legalservices.gov.uk/criminal/cds_newsupdates_7289.asp?page=1

20th January, 2008: Public Law Care Fixed Fee scheme

The LSC has produced new guidance for submitting bills under the public law care fixed fee scheme. The guidance applies only to cases involving s.31 proceedings in Public Law Children cases (i.e. those cases for which certificates have been issued since 1 October 2007).

This guidance should be read in conjunction with the Cost Assessment Manual and the guidance on completing the CLAIM 1A form (claim for costs in Public Law Fixed Fee Scheme Care and Supervision matters – certificates issued after 1 October 2007).

All other work (private family work and all other public law work) will continue to be assessed as before.

Further details can be found on the LSC's website at: http://www.legalservices.gov.uk/docs/fains_and_mediation/GuidanceforprovidersV4Dec07_1(1).pdf

20th January, 2008: Defence Solicitor Call Centre (DSCC)

The LSC has released some details of the DSCC which now handles all requests for publicly funded advice at police stations. The DSCC opened its phone lines on Monday and as many people know, it has not been plain sailing, largely because some police stations appear to be confused as to the appropriate procedures (especially as regards own solicitor work).

The LSC has appreciated these problems and has said that it is addressing them.

The LSC has realised that the volume of own client cases is much higher than forecasted and the service did not handle calls quickly enough.

Additionally, some police stations do not appear to appreciate that clients may still choose to instruct their own solicitor and even if they do, police stations are often still referring this work direct to firms rather than going through the DSCC. The LSC have said that should firms receive such a direct request, they should ask the police to contact the DSCC. If the police say they have tried this, firms can accept the case and log it with the DSCC making it clear that the police say they have tried. The LSC will then follow it up.

20th January 2008: VHCC

The LSC has published on its website, copies of letters which have been sent to the Chair of the Bar Council and to its Chief Executive about the VHCC Panel and the signing of Panel Advocate Contracts.

One of the letters provides clarification on such issues as the contractual obligation to accept cases and the Distant Travel rules.

The other letter accuses the Bar Council of interfering with the individual advocates' decisions whether to sign the contract and even alleges that advocates may have been put under pressure not to sign.

Apparently, a high proportion of advocates have still to sign VHCC advocates’ contracts, and although those contracts do not have to be returned until 21 January, the LSC say that the present indications are that a substantial number of advocates are currently intending not to do so.

The LSC's letter reminds the Bar Council that the terms of the contract (albeit with a few latter changes) have been known to them and to the individual advocates since before the advocates put their names forward to be included in the tender process.

The LSC say in their letter that evidence of the apparent change of mind coincides with the correspondence from the Bar Council and, in some cases, other senior members of the Bar in which the advocates have apparently been advised that the terms are, in the view of the Bar Council, unsatisfactory and that they may now choose not to sign. Additionally, the LSC has said that it has had reports of pressure being put on individuals not to sign, and meetings being arranged to discuss contract signature.

The LSC states in its letter that it is unlawful under Chapter I of the Competition Act 1998 and a criminal offence under section 188 of the Enterprise Act 2002 for parties, including members of the Bar, to collude in the terms on which they offer their services. In this regard, the LSC urges the Bar Council to ensure that members are fully aware of the reasons why the decision whether to sign or not must be made individually, and that if there has been any attempt to co-ordinate a response at Circuit or Chambers level, those responsible must take appropriate action to withdraw or retract.

For further information and to see copies of the letters, please consult the LSC's website at: http://www.legalservices.gov.uk/criminal/contracting/very_high_cost_case_contracts.asp

16th January, 2008: Community Legal Service Grant and Specialist Support Services

The LSC has announced in the Law Society Gazette and on its own website details of two new tenders.

Invitation to apply for a Community Legal Service Grant

The LSC has designated up to £1 million for Community Legal service Grants for the next three years. The grants fund valuable services that support civil legal aid provision but which cannot be delivered under LSC contracts.

The LSC is inviting both existing grant recipients and new applicants seeking funding for projects or activities that meet the criteria to tender. Successful applicants will be awarded a grant of up to 3 years duration, worth a maximum of £300,000 per annum.

Further information is set out in the LSC 'Information for Applicants' document. A copy of this document together with an application form can be found on the LSC's website using the following link: http://www.legalservices.gov.uk/civil/tendering/7230.asp

The closing date for applications is 12 noon on Friday 15 February 2008.

Invitation to tender for the provision of Specialist Support Services

The LSC is also inviting tenders from both existing and potential service providers for the provision of Specialist Support Services. This service will provide second-tier consultancy to approved service providers in the form of telephone advice and support with casework. The service will cover all five areas of social welfare law: community care, debt, employment, housing and welfare benefits. It will also cover immigration, mental health and actions in public law. It must be available from 1 April 2008 and will run for at least three years.

Potential bidders will have the opportunity to ask questions before they decide whether to submit an application. Questions must be submitted to the LSC in writing, by post or email, before 12 noon on Friday 25 January 2008. The LSC will consider the questions and post its answers on its website on Friday 1 February 2008.

Further information is set out in the LSC 'Information for Applicants' document. A copy of this document together with an application form can be found on the LSC's website using the following link: http://www.legalservices.gov.uk/civil/tendering/specialist_support_services.asp

The closing date for applications is 12 noon on Friday 15 February 2008.

14th January, 2008: LGFS Online

The LSC’s new LGFS online claim system will now not be launched on Monday 14 January as planned. The actual scheme itself will be launched as planned.

The LSC states that the LGFS online system will be available on 4 February with a user guide.

Further details can be found at http://www.legalservices.gov.uk/criminal/cds_newsupdates_7258.asp?page=1

p.s. this should not be confused with LSC Online.

14th January, 2008: Crime Training Pack

Following their recent crime training events, the LSC has updated the crime training pack which provides guidance for providers about what is changing and what is staying the same.

It has also developed a Q&A document to support the training pack.

Copies of the documents can be found by using the following link: http://www.legalservices.gov.uk/criminal/useful_resources.asp

Police Station Codes

The LSC has updated the training pack with information on:

document D2 (Guide to PS Fees)
D7 (CDS6 Guide)
D12 (remuneration).
You are advised to enter the police station code for the first station you attended not where the majority of the work was carried out.

For further information see the LSC's website at http://www.legalservices.gov.uk/criminal/cds_newsupdates_7242.asp?page=1

2nd January, 2008: Crime Training Pack

Following on from our last update in relation to litigation between the Law Society and the Legal Services Commission, it appears that the LSC now intend to terminate the Unified Contract.

It seems that the LSC intends to send notification to all organisations operating under a Unified Civil Contract that they will unilaterally terminate all contracts and ask each provider to submit a new bid for a revised Unified Contract.

The LSC say that they will allow new entrants into the marketplace to bid for these contracts. If this happens, this will have the likely effect of creating a number of additional civil firms which is ironically the opposite of what Lord Carter intended.

The LSC say that the fixed fee schemes that were introduced on 1 October continue to apply.

The LSC’s full statement is reproduced below.

Update on the Unified Contract

21 December 2007

Current discussion with the Law Society

The purpose of this update is to inform providers of the current discussions with the Law Society on the effect of the recent judgment on the Unified Contract.

The Court of Appeal held that the rights of the LSC to amend the Unified Contract referred to in clause 13.1 (other than the amendments permitted pursuant to clause 13.2) were incompatible with the Public Procurement Regulations 2006 and EU law principle of transparency.

We have attempted to engage with the Law Society to discuss an alternative, and narrower, amendment provision that is consistent with the Court of Appeal’s judgment and to do so in a way that takes account of the consequences for all civil legal aid providers – both solicitors firms and not for profit agencies.However, regrettably, at the moment we do not have an agreed position as to the effect the declaration may have on clause 13 and amendments made to the contract since April 2007.

As can be seen from the correspondence published by the Law Society, there is clearly a risk of further litigation bringing with it uncertainty for providers and the Commission.

As a result, we've had to write to the Law Society’s lawyers to set out our current intention to terminate the Unified Contract and re-tender for the work.

Given the applicability of the EU Procurement Regulations, confirmed by the courts in the recent litigation, the procurement process leading to the award of new contracts will be open to new providers and to existing contract holders and will include processes for bidding for the allocation of New Matter Starts which are already a feature of the controlled budget for Legal Help.Given the levels of response in the recent Civil Bid Round, this is likely to lead to competition for contracts and work.

It had been our intention to allow providers a period of stability under the Unified Contract, with the new fixed fee schemes in place, in order to allow a period of transition before the next stage of the implementation of the LSC’s and the Government’s announced policies to reform the legal aid system. We are disappointed that this is not now likely to be the case.

We will continue to engage with the Law Society as our view remains that the issues they raise are best resolved through discussion rather than through further litigation. We will let all providers know as soon as we are able to confirm the position.

The civil fixed fee schemes introduced on 1 October 2007 and for mental health cases from 1 January 2008 continue to apply.

1. R(The Law Society) v the Legal Services Commission & Dexter Montague & Partners v the Legal Services Commission [2007] EWCA Civ 1264.

2nd January, 2008: Proposals for Specialist Support Service and CLS Grants Budget

In June 2007, the LSC issued a consultation paper in relation to the Specialist Support Service and CLS Grants Budget outlining the LSC's proposals for the continued funding of these areas. A copy of our June update on this consultation is attached for those who are interested.

The service comprises two key areas:

Specialist Support Service - providing second-tier support to eligible advice organisations

CLS Grants Budget - providing funding to advice related projects and activities.

Following the LSC's consideration of the responses to the consultation, it has decided to retain both the Specialist Support Service and the grants budget for at least a further three years from April 2008, albeit on revised terms.

The LSC will also be increasing the budget for Community Legal Service Grants to £1 million a year for three years.

The grants will be available for services including those that help not-for-profit providers to adapt how they deliver civil legal aid following the recent reforms. They will also be available for services focused on areas such as special Children Act proceedings, asylum, mental health and help with social welfare issues that will enable people to avoid or climb out of social exclusion.

The LSC will continue to fund consultancy services to cover all five areas of social welfare law (community care, debt, employment, housing and welfare benefits) plus immigration, mental health and public law.

The service will, however, no longer continue to provide training to service providers.

Specification

The LSC has said that it intends to publish the contractual specifications for the new Specialist Support Service, together with details about applying for Community Legal Service Grants, in early January. The new Specialist Support Service and CLS Grants will be implemented from April 2008 following an open application process.

The full response to the consultation on Specialist Support Services can be found on the LSC's website at: http://consult.legalservices.gov.uk/inovem/consult.ti/specialist.support/consultationHome

2nd January, 2008: Quality Assurance Pilot Scheme

In June 2007, the LSC published a consultation paper jointly with the Ministry of Justice on proposals to develop a quality assurance pilot scheme for all publicly funded criminal defence advocates working in the crown courts and above. A copy of our earlier email update on this consultation is attached for those interested.

The LSC has now published its official response to that consultation.

In response to the issues raised in the consultation, the LSC has reviewed the project structure as follows:

Other than in a few key areas – such as proportionality, passporting and the inclusion of in-court advocacy skills within assessment – there is a need for further research and development before detailed pilot arrangements can be confirmed.
In some areas, such as competency framework development, and means of assessment, specialist (academic and vocational) skills are required to assist in the research and development process. Without exception, all areas will also require the detailed input of representative advocates.

The LSC will begin work in previously identified work-stream groups. Each of these will be targeted on key areas for pilot development (e.g. competence, evidence and assessment, equality and diversity and pilot arrangements), for each, discussion will be led by the consultation responses, and each group will have membership to meet both technical and representational requirements.

The pilot project (established in LSC and MoJ) will report to an LSC internal Project Board that will ensure adherence to appropriate project standards; will ensure synergy with other legal aid reform programmes; and will deliver detail on the LSC’s specific quality requirements (as procurer) for advocacy services provided to publicly funded clients.
A Reference Group will be established to replace the previous Working Group.

The LSC says that it is confident that detailed pilot proposals will be available by before Summer 2008. Once it has also established what assessment will involve, it will be in a position to identify potential pilot participants (by region or type) and pilot duration. The LSC says that it would anticipate giving between two and three months notice of pilot arrangements, before any pilot start-date.

A full copy of the response can be found on the LSC's website at: http://consult.legalservices.gov.uk/inovem/gf2.ti/f/57858/1395653.1/pdf/-/FinalQAAconsultation17%20Dec%2007.pdf

June 07 Consultation Paper:

The LSC has published a consultation paper jointly with the Ministry of Justice on a proposed Quality Assurance scheme for publicly funded criminal advocates practicing at Crown Court level and above.

This proposal responds to Recommendation 5.3 of Lord Carter of Coles’ independent review of legal aid which recommended that a proportionate system of quality monitoring based on the principles of peer review and a rounded appraisal system should be developed for all advocates working in the criminal, civil and family courts.

The aim of the consultation is to use responses to inform a pilot scheme that will run for 6 - 12 months. It is anticipated that the pilot will test several possible approaches and will initially only apply to publicly funded criminal defence advocates. Following implementation, evaluation and review, the LSC anticipate the scheme will be adapted to apply to all publicly funded advocates.

In summary, the proposals for the final scheme are that:

It should be robust and effective but also be simple to administer and proportionate;
It should apply the same quality assurance standards to all advocates, whether solicitors or barristers, employed or self employed;
It should use a competence framework, which should identify the attributes and abilities required by advocates of differing abilities and experience both in and out of court;
It should use evidence from identified sources to inform the assessment of the competence or otherwise of the advocate;
The evidence should cover advocacy skills, legal knowledge, case management, client service, accurate and timely advice, and effective interaction with other agencies in the criminal justice system;
Individual advocates should be responsible for collecting a body of evidence to show their competencies and skills;
The competency assessment should be based on careful consideration of all evidence submitted on the advocate’s performance and against objective criteria of competencies, which it is proposed should be based on the current quality assured QC system;
Processes should also be established within chambers/firms (and should be subject to audit) to ensure that the right advocate is taking on the right case, and that quality representation is assured for all publicly funded criminal defence cases.
Responses to the Consultation should be sent to the LSC by 17th September 2007.

A link to the consultation paper is given below.

http://www.legalservices.gov.uk/docs/criminal_consultations/Quality_Assurance_Consultation_Paper_210607.pdf

14th December, 2007: Law Society's appeal against the LSC

Further to our update last week on the Law Society's successful appeal against the LSC, some further steps have been taken by the Law Society.

Unified Contract

Following its discussions with counsel on the practical implications of the appeal result, the Law Society wrote to the LSC last week inviting the Commission to withdraw the October 2007 civil specifications and revert to the previous specification. They also called on the LSC to confirm that it will not proceed with the new Mental Health specification scheduled for commencement in January.

The LSC's response to this letter confirms that it will not be issuing a petition to the House of Lords against the CA judgement.

In its letter, the LSC say that it accepts that it has a duty to have regard and give effect to the declaration in the judgment and therefore, cannot rely on clause 13.1 in the Unified Contract. It also acknowledges that there are similar amendment clauses in the other contracts (including the January 2008 General Criminal Contract). It does not accept that the judgment obliges the commission to bring the Unified Contract to an end only that a formal amendment may need to be considered.

The Commission's letter surprisingly appears to indicate that it accepts that the introduction of the civil specification may not have been justified under clause 13.1. However, it alleges that the October 2007 changes and, in particular, the introduction of the payment annex was a necessary response to the Community Legal Service (Funding) Order 2007 which came into force on 1st October 2007. Such amendments were, it alleges, permissible under clause 13.2 of the Contract. Clause 13.2 permits amendments to take account of legislative changes and was not governed by the judgment.

In its response to the LSC's letter, the Law Society contends that this reasoning is 'devoid of any legal or factual foundation'. Firstly, the Society argues that the Funding Order cannot be relied on to make changes to the Unified Contract as the Contract had already been entered into before the Order came into effect. The Society also claim that the October amendments were not made under clause 13.2 in order to comply with the Funding Order and even if there were, there is a requirement (in clause 13.3) for a consultation on any amendments effected under clause 13.2 which was not carried out.

The Law Society is meeting with the LSC today to discuss the matter further. The Society believes that the judgment creates a valuable opportunity to negotiate a fairer contract but it has made it clear that it is also ready to pursue further litigation if necessary.

A copy of the letters have been made available on the following page of the Law Society's website: http://www.lawsociety.org.uk/newsandevents/news/view=newsarticle.law?NEWSID=374353

General Criminal Contract

The Law Society has also consulted with leading counsel on the validity of the General Criminal Contract (GCC) following the judgment.

Counsel have apparently advised that any challenge to the GCC will not affect Crown Court rates or the expansion of CDS Direct. Furthermore, counsel has advised that the judgment does not entitle the Law Society to delay the start of the new GCC. However, parts of the GCC are alleged to be non-compliant with European law and so the Society has written to the LSC asking it for its proposals for nullifying the non-compliant clauses by 2 January 2008 .

Very High Cost Case contract

The judgment also impacts on the the LSC's power of amendment in the VHCC contract. The Law Society has also written to the LSC to seek its proposals for amending these provisions.

A copy of the Law Society's letters on the GCC and VHCC contract can be found on the following page of the Society's website: http://www.lawsociety.org.uk/newsandevents/news/view=newsarticle.law?NEWSID=376393

11th December, 2007: Best Value Tendering

The LSC has today released details of its future plans in relation to Best Value Tendering (BVT).

Preferred Supplier

The LSC is no longer introducing the proposed Preferred Supplier scheme.

The LSC is instead putting into place some of the features of the proposed scheme such as:

- quality assurance through peer review - a peer review rating of at least 3 (threshold competence) will now be sufficient. See below for further details.
- electronic working - a consultation will be issued shortly on the LSC's proposals.
- devolving responsibility to providers for more civil case decisions - the LSC will also be consulting on devolving further decisions to providers, such as, means testing in civil cases.
- remote performance monitoring - key performance indications (KPIs) have been introduced in civil cases and the LSC will shortly be consulting on appropriate KPIs for crime providers for July 2008.
- relationship management - the LSC will continue its programme of developing and training staff as relationship managers.

Assuring Quality

The LSC has released a policy paper entitled 'Assuring And Improving Quality In The Reformed Legal Aid System' which sets out how the LSC propose to measure quality of advice and representation being provided to clients.

The paper includes the following matters.

Peer Review

Quality will be continue to be measured by peer review.

The LSC's proposals are that providers will now only need at least threshold competence (level 3) to take part in the first rounds of competitive tendering. The LSC will consider whether this should be moved to a minimum rating of two (Competence Plus) for future rounds.

There are a number of low volume civil categories of law where a Peer Review Panel has yet to be established and, in these categories, the LSC will need to assess whether, given the volume of work and degree of specialism, it will be appropriate to use Peer Review or whether alternative approaches should be considered.

File Assessment Quality

The LSC will not be implementing the system of File Assessment Value For Money (FAVFM) as planned.

As advised last week, the LSC is instead commencing a revised programme of Contract Compliance Audits.

Specialist Quality Mark (SQM)

The SQM will continue to be the quality standard for publicly funded work.

Passing responsibility for quality standards to the SRA

The LSC intends to continue to manage the Peer Review process, working through the Institute of Advanced Legal Studies, until the first round of Peer Reviews and the first round roll-out of the proposed BVT arrangements have been completed. After that, the proposal is to formally move primary responsibility for quality standards, including Peer Review, to the SRA.

Further information

To see a copy of the policy paper, please visit the following page of the LSC's website: http://www.legalservices.gov.uk/civil/how/quality_performance.asp

11th December, 2007: New Consultation on Best Value Tendering

The LSC has released today details of a new consultation on Best Value Tendering (BVT) for criminal defence services.

The basis of the new BVT proposals as outlined by the LSC is as follows:

Firms being asked to tender on the basis of price - i.e. prices being set by competition rather than an administrative process. The rate would be set by the market based on local circumstances.
A requirement of a peer review rating of at least 3 (Threshold Competence) (previously it was thought that only 1 and 2 would be suitable).
Firms being able to demonstrate capacity to offer the required client access and having a well run and financially stable business.
The initial proposed BVT phases would be for police station and magistrates’ court cases. Crown Court work would be incorporated from later phases.

The proposals suggest that the number and size of contracts to be awarded could be based on the local market conditions at the time of the tender.

Dates for the implementation of BVT would be dependent on the results of the consultation process.

What is the LSC consulting on?

This first consultation is only on on the basic principle and possible outline design.

The consultation seeks the views of practitioners, and other interested parties on the principle of BVT and on how a scheme might be put together. It asks practitioners to give their views on whether BVT is the better way of procuring criminal legal services. Other options set out in the consultation would be to continue with setting fees administratively (by fixed or graduated fees) or a national roll-out of the Public Defender Service.

The LSC plans, subject to its consideration of the results of this consultation, to draw up a detailed scheme for further consultation next year.

You can respond to the consultation online and you don't need to complete the questionnaire in one go (answers are saved as draft until you choose to formally submit them).

This consultation will close on 3rd March 2008.

For further details and to see a copy of the consultation paper, please visit:

http://www.legalservices.gov.uk/criminal/cds_newsupdates_7141.asp?page=1

11th December, 2007: Fixed Fees Contract Compliance Audits

The LSC has announced today details of a new audit programme which will commence in January 2008 incorporating their new fixed fees contract compliance audits (FFCCA). All categories of law will be included as they move to fixed fee regimes.

Those elements of the previous contract compliance audits which are relevant to fixed fees have been incorporated into the LSC's File Assessment Value for Money audit process. The purpose of these audits is to confirm whether contract requirements are being met.

The LSC say that they have designed the audit tool so as to focus on:

scope
merit
means
evidence of means
accuracy of reporting.
These factors are considered by the LSC to be critical to determine whether a case should have been funded, except for 'accuracy of reporting' that impacts on management information. It is in providers' interests to ensure that this management information which the LSC is using to make judgements about provider performance is accurate.

Audit Process

If on initial audit of 20 files it would appear that some providers are not meeting contract requirements, they will be invited to provide supplementary information and evidence, even on a retrospective basis. After this has been considered, the LSC will attribute a rating of either A1, A2 or A3 depending on the number of files nil assessed. The action required will depend on the rating as follows:

A1 Rating: where 0 - 3 files are nil assessed - This would lead to recoupment of value of files nil assessed.
A2 Rating: where 4 - 6 files are nil assessed - This would lead to recoupment of the value of files nil assessed plus a reaudit within approximately 6 months and contract notice(s) where appropriate.
A3 Rating: where 7 or more files are nil assessed - This would lead to an audit of 60-90 files (a statistically representative sample).

The issues which the LSC will audit in the extended file sample are the same as those in the initial sample. The outcomes will be the same as for the established Costs Compliance Audits. The LSC will attribute a rating of either B1, B2 or B3 dependent on the % value assessed down as follows:

B1 Rating: Less than 10% assessed down - This would result in recoupment of the value assessed down on the files audited.
B2 Rating: 10% to 20% assessed down - This would result in an extrapolation of % reduction, a reaudit within approximately 6 months and contract notice(s).
B3 Rating: More than 20% assessed down - This would result in extrapolation of % reduction and further action to be determined on an individual basis.

Appeal Process

The appeal process will be the same that exists for the Contract Compliance Audits. This includes an opportunity to receive a 5% reduction in the amount to be recouped or extrapolated when no appeal is made.

For further information, please see the following web page on the LSC's website: http://www.legalservices.gov.uk/criminal/cds_newsupdates_7128.asp?page=1

11th December, 2007: Law Society -v- LSC

You will recall our update last week on the Law Society's successful appeal against the LSC.

The Law Society has now released the details of its discussions with counsel on the practical implications of the appeal result.

Counsel instructed by the Law Society have apparently advised that the LSC cannot seek to take advantage of, or to continue to rely on, rights under the Unified Contract that have been found to be incompatible with the EC transparency regulations governing public contract procurement. What this means in practice is that the changes to the Contract introduced in October 2007 should be treated as being of no effect.

The Law Society now calls upon the LSC to rescind the October 2007 amendments to the Unified Contract, including the civil and family fixed and graduated fee schemes so as to nullify the effect of the alleged unlawful action.

The Law Society has written to the LSC asking them to withdraw the October 2007 civil specifications and revert to the previous specification. It has also called for the LSC to confirm that they will not proceed with the new Mental Health specification scheduled for commencement in January.

To see a copy of the Society's press release and a copy of the letter to the LSC, please click on the following link or paste it into your browser: http://www.lawsociety.org.uk/newsandevents/pressreleases/view=newsarticle.law?NEWSID=374353

30th November, 2007: Legal Services Act 2007

The Law Society have released a briefing about the Legal Services Act (2007).

The briefing states that the Act’s key measure are that:

“• It creates a single supervisory body, the Legal Services Board (LSB), to oversee the approved regulators such as the Law Society and the Bar Council.

• It creates a single point of entry for consumer complaints about legal services. This is the Office for Legal Complaints.

• It creates alternative business structures (ABSs), allowing lawyers to form partnerships with non-lawyers, and accept outside investment or operate under external ownership.

• It requires professional bodies to separate their regulatory and representative functions.

• It creates statutory objectives and duties for all regulatory bodies.”

Timetable

The briefing states:

“The LSB is not expected to be fully established before 2010, with the OLC following shortly afterwards. The chair and members of both boards should be appointed during 2008, but the LSB might not assume its powers before 2010, with the OLC becoming empowered shortly afterwards. The new ABS regime is unlikely to be available for adoption until 2011 or 2012, since this requires the LSB to be in place. Legal disciplinary practices are likely to be a possible option for solicitors and other lawyers from 2009.”

The briefing is quite succinct at 4 pages (excl. title and contents page), so I would recommend any interested parties to read it. It can be downloaded from: http://www.lawsociety.org.uk/documents/downloads/dynamic/lsa_briefing.pdf

30th November, 2007: Unified Contract

There has been a major development in relation to the action which had been brought by the Law Society against the Legal Services Commission.

You may recall from previous briefings that earlier this year the Law Society had issued judicial review proceedings against the LSC targeting its claim of a unilateral right to amend the Unified Contract.

The Court of Appeal has today handed down its judgment upholding the Law Society's claim. It held that the LSC's reserved power to insert new technical specifications and to amend any existing specifications without any restriction was in breach of procurement rules as it did not allow a potential service provider to determine in advance the performance and functional requirements it may in fact be obliged to comply with during the contract period.

What this means?

It would appear that the LSC cannot now exercise the power which it had reserved to unilaterally amend the unified contract in the way it had previously anticipated. If the LSC wishes to make amendments which affect the economic balance of the contract, it may need to go through a new procurement procedure (for instance by instigating a period of re-tendering for new contracts). The judgment does not appear to set out precisely the kind of amendments that the LSC can make to the existing contract and the kind that would require the LSC to issue a new contract (which would need to be re-tendered for).

The Law Society is currently taking legal advice and has said that it will look to give providers further information on the precise effect of the judgment. We will let you know if there any developments.

For those of you who want to know more information or, if like us, you only had a vague recollection of the issues raised by the parties, I have set out below a summary of the background to this claim.

Summary

The matter was heard in July with Judgment on this matter being given at first instance. The Law Society was partially successful in this case as the Judge ordered that unilaterally amending the contract was not compatible with regulations 9(2), 9(4) and 9(7) of the Public Contracts Regulations 2006 and therefore, restrictions were placed on the ability of the LSC to unilaterally amend.

However, the extent to which the LSC was so restricted was disputed.

The challenge did not succeed in preventing the LSC from amending the unified contract to introduce the new civil legal aid fee schemes and these were implemented, as planned, from October 2007. The Judgment did however affect the ability of the LSC to amend any ‘technical specifications’ in the contract, relating to quality or performance levels. The judge identified these as relating to quality and performance levels and including peer review requirements and key performance indicators and the Specialist Quality Mark, but not fee levels and structures. The judge held that in relation to these ‘technical specifications’ the amendment provisions needed to be much narrower and based on "objective criteria".

As we understand the position, the Law Society’s interpretation of the judgment was such that it restrained the LSC from introducing any changes to the Contract that altered the economic balance of the contract such that it causes an ‘economic disadvantage’ to firms or to some of them. To the extent that it did so, the LSC may not be able to implement those amendments unless it undertakes a new contracting procedure.

It appeared that the LSC did not agree with this interpretation of the judgment. In any case, the LSC indicated that it did not agree with the decision on any level, especially with regard to the judge’s interpretation of some aspects of EU and domestic procurement law, and therefore announced that it would proceed with an appeal.

Criminal Contract

The Judgment certainly posed some problems for the LSC in terms of what amendments it could now make and to which provisions. By the time the judgment was handed down, the Unified Contract (for civil practitioners) had already been signed by practitioners. However, as it had yet to be signed, the Judgment did raise particular problems in relation to the General Criminal Contract.

Prior to the judicial review, it had been the LSC's intention to issue a notice of amendment to the existing General Criminal Contract from October 2007 so as to bring criminal providers onto the Unified Contract. However, the General Criminal Contract was entered into some time before the legal aid reform program was announced and providers would not have been aware of the proposed reforms at the time they signed. In view of the uncertainty arising from the Judgment, the LSC had to accept that it could not introduce a unilateral right to amend the contract into the proposed Unified Contract for criminal legal aid services. Instead, it has taken the option to introduce a short term contract for six months only to start in January 2008 and to run a tendering process for contracts including the changes.

Appeal

The Law Society issued the appeal in order to obtain clarity on the restrictions on the LSC's ability to amend the Unified Contract and to appeal in respect of the declaration where it was not successful. The LSC was also appealing against the decision taken in the original judgment.

The appeal was heard in the middle of October and the judgment was handed down today.

The court has upheld the Law Society's challenge to the LSC's unified contract. It also rejected the LSC's appeal and refused the LSC permission to appeal to the House of Lords and ordered it to pay Law Society’s costs.

The court held that the power unilaterally reserved by the LSC was not simply to make technical specifications but to rewrite the performance standards of the contract. In this 'extreme case', this power to insert new technical specifications and to amend any existing specifications without any restriction was held to be in breach of the procurement rules as it did not allow a potential service provider to determine in advance the performance and functional requirements it may in fact be obliged to comply with during the contract period.

The Law Society is consulting with counsel on the precise ramifications of this judgment and will advise providers of their advice in due course.

For more information,you may wish to read the Law Society's press release which also attached a copy of the judgment:

(http://www.lawsociety.org.uk/newsandevents/pressreleases/view=newsarticle.law?NEWSID=373744)

30th November, 2007: LSC Online

As many are probably aware, due to technical difficulties, LSC Online has been closed until further notice.

Bulkload Spreadsheet

If organisations have not yet made their October submissions, the LSC has directed that they should be submitted using the LSC's Bulkload Spreadsheet. Guidance on how to complete and submit this is on the LSC's website: http://www.legalservices.gov.uk/lsconline/submitting_claims.asp

Once organisations have completed the spreadsheet, it is to be e-mailed to lsc submissions @ legalservices.gov.uk

The LSC is encouraging as many providers as possible to submit using this method rather than to submit by paper. However, if an organisation usually submits by paper, the LSC will also accept paper submissions. Crime paper submissions should be sent to the LSC's Cambridge office and any civil paper submissions to the Reading office.

The LSC has said that it will be keeping a window of LSC Online open next week to enable those who have already started to submit online.

If organisations have any difficulties completing their submissions, they are advised to telephone LSC Online Support on 0207 718 8359.

Deadline for October Submissions

Organisations have until 27 November to make their submissions. The LSC has said that it is ready to accept them now and indicated that it would be grateful if organisations could send their spreadsheets as soon as they are completed.

30th November, 2007: Immigration Tenders

The LSC has announced that two successful legal advice pilots for detained asylum seekers and immigrants are to become a permanent part of the legal aid service, and they are inviting firms to tender to deliver the work.

Invitations to tender have been launched for the delivery of "specialist, high quality and easily accessible services for advice and representation" at:

police stations
Immigration Removal Centres.

The Two Schemes

(1) Police Station Immigration telephone advice

The pilot was set up on 12 June 2006 to address an advice gap. Individuals detained at the police stations often faced difficulty in accessing civil immigration advice, particularly outside office hours and weekends.

The pilot had successfully provided telephone advice to clients 24/7. Going forward, the service will run from 7am to midnight.

The scheme is designed to allow clients to:

clarify their rights and legal position on their immigration status
clarify any actions they may need to take
understand what is likely to happen to them and, in some cases resolve the matter without the need for further representation.

(2) Immigration Removal Centre advice

This scheme will operate as

- an onsite advice surgery (two days a week in each Immigration Removal Centre - Campsfield, Colnbrook, Dover, Harmondsworth, Haslar, Lindholme, Tinsley House and Yarl's Wood but not at Oakington where exclusive on-site arrangements will continue to operate);
- a fast track duty service providing advice/representation to clients whose asylum applications are subject to the Home Office Fast Track process. The Fast Track service will operate only in Harmondsworth and Yarl's Wood Immigration Removal Centre.
Exclusive Contracts

Services to these detained groups will now be more coordinated through the introduction of exclusive contracts. The exclusive contracts will allow providers to develop relationships with removal centre staff that ensure cases are handled effectively and with minimal duplication of work.

Contracts will run from 1 April 2008 to 31 March 2010. Current pilot contracts and Fast Track contracts for Harmondsworth and Yarl's Wood IRCs will end on 31 March 2008.

The police station telephone advice work will be paid by fixed fees while advice provision in IRC’s will predominately be paid through hourly rates, with some services paid through set payments.

The Tender Process

The LSC is inviting both current providers and new organisations to tender for this work.

Organisations can join together to tender for the services. However, the LSC will only contract with one single legal entity and therefore, referral arrangements whereby one organisation refers work to another organisation by way of a sub-contracting agreement would not be acceptable. The organisations would have to form a new single legal entity to provide the services.

The LSC has published Information for Applicants (IFA) and Tender Application Forms for each scheme. You will need to consider the information in the IFA for each Immigration Removal Centre you wish to bid for.

Copies of these documents can be downloaded directly from the LSC's website: http://www.legalservices.gov.uk/civil/tendering/immigration_detained_advice_bid_round.asp

Further questions on the bid process can be put to the LSC but these need to be received by them by 5pm on 14th December 2007.

The closing date for the tenders is Friday 4th January 2008.

15th November, 2007: Justice Minister David Hanson MP announces the launch of a joint Governmental youth justice unit.

The Joint Youth Justice Unit will merge the responsibilities of the former Ministry of Justice Youth Justice and Children Unit and those of the Young Offender Education Team of the Offenders Learning and Skills Unit of the former DFES.

The unit will have two aims:

(i) To contribute to the protection of the public by developing policy and law in relation to children and young people who offend and are at risk of offending.

(ii) To ensure that children and young people in contact with the criminal justice system achieve all five outcomes of Every Child Matters i.e. to be healthy, stay safe, enjoy and achieve, make a positive contribution and achieve economic well-being.

The Unit will also sponsor the Youth Justice Board for England and Wales - the executive non-departmental public body that oversees the youth justice system. It will continue to oversee early intervention and prevention programmes delivered via the Youth Justice Board through Youth Offending Teams and have responsibility for policy in relation to children and young people in the out-of-court system, those on community sentences and in custody. It will continue to oversee policy on resettlement and reducing youth re-offending. Additionally, education of youth offenders in custody, which was formerly the responsibility of DCSF will now, be part of the joint unit's remit.

For further information, please see the Ministry of Justice's website at: http://www.justice.gov.uk/news/newsrelease131107b.htm

15th November, 2007: The LSC announces that from 12 November, Community Legal Service Direct will be known as Community Legal Advice.

The LSC have confirmed that the name change follows a desire expressed by clients for a clearer name as well as research that showed a need for the justice system to be clear in the language used to promote services. Various names were tested with clients, including ‘Community Legal Service’ which was unpopular. The most popular was ‘Community Legal Advice’.

The phone number hasn’t changed - people can still access the same free and confidential advice paid for by legal aid on 0845 3454345.

The new website is www.communitylegaladvice.org.uk

Further information can be found on the LSC's website http://www.legalservices.gov.uk/aboutus/press_releases_7003.asp

26th October, 2007: Crime Update

There are a few matters which are relevant to crime suppliers.

Reminder about the next week's deadline

The deadline for return of applications for the General Criminal Contract January 2008 is 4pm on Wednesday 31 October 2007.

Current providers who don't apply will not get duty slots from 14 January 2008 and will not be paid for any new contract work started from that date. Monthly payments to these firms are likely to be reduced from December 2007 as the old contract draws to a close. If there is a shortfall of applications in any area, providers who have signed up and have said they can take on extra work will be considered to provide additional coverage.

LSC arrangements for receipt of applications on 31 October 2007

To handle receipt of applications on 31 October 2007, Regional LSC Offices and London Head Offices will set up receptacles in LSC reception areas where you can submit your application forms. The LSC will not be issuing receipts for applications submitted on time. Any applications that are on the premises of an LSC office, or are handed to an LSC employee by 4pm on 31 October 2007 will be posted into these receptacles. The receptacles will be removed after 4pm.

Late applications

Any applications that enter LSC receptions after 4pm will be noted as ‘out of time’, with the time and date noted on them.

Where providers have submitted applications out of time, they have 48 hours (i.e. until 4pm on Friday, 2 November) to submit their representations for the application to be accepted due to exceptional circumstances (i.e. relating to unforeseeable problems, such as fire, flood etc. and not including technical difficulties with email and/or postal strikes).

Therefore, if you are intending to post your application, you should leave sufficient time for it to be delivered (and, in view of the recent postal difficulties, I recommend that you use a guaranteed timed delivery service). Better still to hand-deliver the application to your Regional Office. Faxed applications are not permissible.

Guidance for prison visits

A Good Practice Guide for prison visits has been jointly produced by the Ministry of Justice, HM Prisons Service (HMPS), National Offender Management Service (NOMS) and the LSC.

The guide uses good practice identified at the local level to highlight how improvements can be made across the system as a whole by both prisons and practitioners and recommends:

- joint working by both parties on improvements to legal visits via local user group forums is an effective way to push forward reform
- prisons should improve the processes that support visits more effectively, such as making greater use of electronic booking systems and providing specific written information for legal visitors which is then adhered to
defence practitioners should be aware that late cancellation of legal visits creates operational problems for prisons and results in delays for other practitioners who want to arrange legal visits with their clients.

A copy of the guide can be obtained from the LSC or MoJ's website.

Police Station Codes

On the 5 November, the LSC's new online system will open to allow submissions to be entered (line by line as well as bulk loading claims). All submissions entered into the new system must, for all cases reported, adhere to the new October 2007 reporting standards irrespective of when the cases started.

You must therefore use the new codes for scheme areas and police stations when reporting police station work.

The LSC has published the 'CDS6 guidance' which contains all new police station codes, equal opportunity codes and information on how to complete the CDS6 form. A copy of this is available on the LSC website at www.legalservices.gov.uk/docs/forms/CDS6Guidance.pdf.

26th October, 2007: HMCS changes to exemption and remission arrangements

HMCS has made changes to the exemption and remission arrangements for court fees, relating to civil proceedings, family proceedings and proceedings in the Magistrates’ Courts, with effect from 1 October 2007.

The main change is that from 1 October a client in receipt of Legal Help will no longer carry an automatic exemption from court fees (other than in the Magistrates’ Court). Every applicant will be assessed to determine if they are financially eligible for a full or partial remission of fees, based solely on their income. If clients are not eligible for a full remission they will have to pay the full or part fee determined by the court.

Court fees continue to be disbursements which are not allowable under Controlled Work and this has not changed in the new specification.

The main area of impact of the HMCS policy change is divorces conducted under Legal Help.

Clients who receive passported benefits (income support, income based job seekers’ allowance, state pension guarantee credit and working tax credit with no element for child tax credit) are exempt from the payment of fees.

HMCS is liaising with the LSC over the information available to court users on these changes and also on collection of fees for proceedings in the Magistrates’ Court where currently Legal Help carries an automatic exemption. However, this exemption is due to be removed as soon as possible.

Full details of when a client will be eligible for full remission and how the court will deal with these applications are in the HMCS leaflet EX160A. A copy of this is attached but is also available on the HMCS website at www.hmcourts-service.gov.uk.

Queries and issues regarding changes in the fees exemptions should be addressed to the HMCS Customer Service Unit at 5th Floor, Clive House, Petty France, London, SW1H 9EX, or emailing customer servicecs hq at the above web address.

26th October, 2007: Bid Rounds

As advised in a previous update, the LSC is inviting tenders from organisations wishing deliver publicly funded civil legal advice services in family & social welfare law and mental health categories. There are separate ‘Information for Applicants’ for each Region setting out the services required and the areas in which they are needed.

The bid round is for additional matter starts only. Therefore, only organisations that are turning away work or believe that they can attract additional work should consider applying. These bid rounds do not, in any way, affect your current contract and schedule.

Copies of the tender application forms are now available on the LSC's website and have been attached to this email in pdf format for your convenience.

Brighton - Bristol - Leeds - London - Midlands - Newcastle - North West - Reading - Wales

Mental Health - Specialist Family

If you didn't see our previous update on this and need further information on the bid rounds or copies of the Information for Applicants, please see the LSC's website (http://www.legalservices.gov.uk/civil/tendering/civil_bid_rounds.asp) and of course please feel free to contact us.

The closing date for the family and social welfare tenders to be submitted is 4pm on Tuesday 13 November 2007.

The closing date for mental health tenders is 4pm on Wednesday, 28th November 2007.

26th October, 2007: New FAQs and Funding Code Guidance published

The LSC has finalised and published the latest Frequently Asked Questions in relation to Immigration and Asylum matters . A copy of the FAQs are attached to this email for your convenience but can also be obtained directly from the LSC's website (http://www.legalservices.gov.uk/civil/immigration/immigration_contracts.asp#FAQ3).

The LSC has also published the latest Funding Code Decision Making Guidance on Immigration matters (again, a copy is attached).

The Funding Code is the set of rules which the LSC uses to decide what individual cases it will fund through civil legal aid. It comes in three parts: the Criteria; the Procedures; and the Decision Making Guidance. The Decision Making Guidance helps inform practitioners working under the Funding Code.

Both documents should be read in conjunction with the Unified Contract, Civil and Immigration Specifications and Civil Codes Guidance.

26th October, 2007: SRA - Proposals for a review of professional accreditation schemes

The Solicitors Regulation Authority (SRA) has announced that it is proposing to develop a strategic framework for the development and operation of its accreditation schemes and to review its current schemes in line with that strategy.

It has issued a consultation paper seeking views on the key issues and principles that will form the basis of the strategic framework.

The consultation paper outlines the regulatory context within which the SRA operates and the proposals are drafted. The paper also sets out the objectives, scope and key underlying principles that will form the basis of the planned review. The review will deal with the SRA's current accreditation schemes and exclude the development of new schemes, which instead will be considered as part of a longer term review of solicitors' quality assurance.

In summary, the proposals are that:

a) for the purposes of this review, the SRA retains its current non-compulsory approach to accreditation schemes but that the question of voluntary or compulsory schemes should be considered as part of the proposed longer term review of the quality assurance of solicitors;

b) the SRA should operate accreditation schemes on the basis of proportionality and the avoidance of unnecessary barriers to competition. Primarily, accreditation should be supported by the SRA in areas of law where there is a case for protection of vulnerable clients in the public interest and support for an efficient justice system. Consideration will also be given, where appropriate, to schemes which facilitate the requirements of procurers with monopsony power (i.e. to ensure quality/competence on behalf of end clients in situations where there is monopoly purchasing power by organisations, e.g. the Legal Services Commission);

c) all schemes run by the SRA should be based on a clear set of competence standards against which applicants will be assessed. The standards will be set at the level of "competent" practitioner; the SRA should not normally be concerned with the setting of higher level criteria for accreditation schemes. There may be possible exceptions for more complex areas of practice, such as child protection work within the wider family law discipline;

d) the SRA's role in accreditation schemes, as regulator, should be to set the standards for schemes and to validate other organisations to provide objective assessments against these standards. The SRA will not be prescriptive about the methods and formats of assessments but will implement a common framework of assessment standards against which assessing organisations will be monitored for compliance and consistency by the SRA;

e) practitioners who are accredited on all schemes should be subject to re-accreditation after a fixed period of time. The SRA will implement a common approach to re-accreditation, which will be based on an assessment by a third party organisation of practitioners' up-to-date knowledge in the particular area of law.

There are a number of issues specific to particular schemes which the review will address:

• Criminal Litigation Accreditation Schemes – The majority of practitioners on the scheme have never been formally assessed and were passported on to the scheme. The introduction of a process for re-accrediting these practitioners is now overdue. There is also a need to update the standards for the scheme.

• Immigration and Asylum Accreditation Scheme – Many existing practitioners are due for re-accreditation by April 2008. As no reaccreditation process exists, accreditation has been extended to 1 July 2008. A process for re-accreditation must be implemented before this date.

• Mental Health Review Tribunal Scheme – Changes in the area of mental health law require a review of the accreditation criteria and assessment process for this scheme.

• Children Law Accreditation Scheme – Recent changes in this area of law require a review of the standards for this scheme.

• Family Law Accreditation Scheme Advanced Level – There is a need to introduce a process

A copy of the consultation paper is attached (but can also be found on the SRA's website http://www.sra.org.uk/consultations/325.article).

If you wish to respond, you will need to complete a consultation questionnaire which comprises 19 multiple-choice questions, with an option to comment on each question. This can be completed online (at http://www.sra.org.uk/surveys/accreditation.page) or alternatively, a copy may be downloaded from their website and returned by email.

The deadline for receipt of responses is 25 January 2008.

For further information on this consultation, please see the SRA's website.

22nd October, 2007: Civil Bid Rounds

Further to our update of 16th October on the Civil Bid rounds, the LSC have now published the Mental Health Information for Applicants (IFA). For convenience, a copy of the IFA is attached but it can also be obtained from the LSC's website: http://www.legalservices.gov.uk/civil/tendering/civil_bid_rounds.asp

The closing date for tenders to be submitted for the mental health bid is 4pm on Wednesday, 28th November 2007. This deadline is later than the other civil bids so as to allow practitioners the opportunity to review the Mental Health Contract Specification which is due to be published later this month.

We have had a number of queries about the bid rounds and in particular, with regard to the location and/or content of the application forms. Presently, the LSC has only released the IFAs for the various bid rounds and has yet to publish the application forms. They are expected at some stage next week.

16th October, 2007: Law Society concerns about aspects of criminal contract

In a previous update (see below) , we advised that the Law Society had written to the LSC setting out its concerns about aspects of the six-month criminal contract to be introduced in January 2008. The Law Society had also issued a statement on its website to clarify its advice regarding that contract and the CDS Direct provisions (for a link to that statement, see: http://www.lawsociety.org.uk/newsandevents/news/view=newsarticle.law?NEWSID=365194).

The LSC has released its own statement responding to the concerns. In summary, the LSC has stated the following (quoting directly as appropriate):

The LSC will be "guided by requirements set out by the Solicitors’ Regulation Authority. The SRA is now organisationally separate from, and exercises its regulation of the profession independently of, the Law Society. The waiver currently being considered by the SRA for one of three contractors for CDS Direct is a matter for the SRA alone".

The "contracts let to provide CDS Direct services are to organisations that have a track record of delivering police station advice. They are trusted and experienced organisations, either established law firms, or in one case a provider which has been used over a number of years by many solicitors to deliver parts of their own service".

"Telephone advice on legal matters is often delivered by organisations which are not organised as firms of solicitors. That is the case with private legal telephone advice services, and the existing successful CDS Direct service is contracted to a company which is not organised as a firm of solicitors. This is not a new business model and does not anticipate changes which are likely to come about as a result of a future Legal Services Act."

The LSC "welcome(s) the expedited hearing of the Unified Contract Judicial Review appeal."

The LSC has also today released details of its response to the Law Society by way of a letter to Desmond Hudson, Chief Executive of the Law Society: http://www.legalservices.gov.uk/docs/criminal_contracting/letter_des_hudson_161007.pdf; together with a table setting out the LSC's response to specific points raised by The Law Society: http://www.legalservices.gov.uk/docs/criminal_contracting/LSC_response_lawsoc_concerns_161007.pdf

If you require any further details on the above, please see the websites of the Law Society and the LSC (http://www.lawsociety.org.uk/newsandevents/news/majorcampaigns/view=newsarticle.law?CAMPAIGNSID=247074 and http://www.legalservices.gov.uk/criminal/cds_newsupdates_6786.asp respectively).

16th October, 2007: Civil Bid Rounds

The LSC has announced this afternoon further details on the forthcoming civil bid rounds.

Bid Rounds

The LSC is inviting tenders from organisations wishing deliver publicly funded civil legal advice services. This is an open tendering exercise for organisations to deliver family and/or an integrated social welfare law service at a basic advice level in a number of civil categories of law across England and Wales.

Successful organisations will also be authorised to provide representation to eligible clients in certain categories of law.

The process

The LSC is running bid rounds to award contracts in the following categories:

Specialist Family services (Domestic Violence and Public Law children) throughout England and Wales. Any organisation can apply regardless of the location where they intend to deliver the service. There is a separate ‘Information for Applicants’ for these services published on the LSC's website.

Mental Health law throughout England and Wales. Any organisation can apply regardless of the location where they intend to deliver the service. There will be a separate ‘Information for Applicants’ for these services (although it is not yet available on the LSC's website).

Various integrated services in Family and/or Social Welfare categories of law in each of the LSC’s Regional areas.

Various single services in Family and/or Social Welfare Categories of Law in each of the LSC’s Regional areas.

For these integrated services there is separate ‘Information for Applicants’ (‘IFA’) for each Region setting out the services required and the areas in which they are needed. Each Regional IFA may cover several different services required in that Region. Copies of the IFAs can be found on the LSC's website (http://www.legalservices.gov.uk/civil/tendering/civil_bid_rounds.asp) or by using the links below.

http://www.legalservices.gov.uk/docs/civil_contracting/Information_for_Applicants_London_Oct_07.pdf

http://www.legalservices.gov.uk/docs/civil_contracting/Information_for_Applicants_Brighton_Oct_07.pdf

http://www.legalservices.gov.uk/docs/civil_contracting/Information_for_Applicants_Bristol_Oct_07.pdf

http://www.legalservices.gov.uk/docs/civil_contracting/Information_for_applicants_Leeds_Oct_07.pdf

http://www.legalservices.gov.uk/docs/civil_contracting/Information_for_applicants_Manchester_Oct_07.pdf

http://www.legalservices.gov.uk/docs/civil_contracting/Information_for_applicants_Midlands_Oct_07.pdf

http://www.legalservices.gov.uk/docs/civil_contracting/Information_for_applicants_Newcastle_Oct_07.pdf

http://www.legalservices.gov.uk/docs/civil_contracting/Information_for_applicants_Reading_Oct_07.pdf

http://www.legalservices.gov.uk/docs/civil_contracting/Information_for_applicants_Wales_Oct_07.pdf

http://www.legalservices.gov.uk/docs/civil_contracting/Information_for_applicants_Specialist_Family_Services_Oct_07.pdf

The closing date for tenders to be submitted in 4pm on Tuesday 13 November 2007.

16th October, 2007: CDS Direct

The Law Society, on Friday 12 October, issued a statement about concerns they have about the implementation of CDS Direct and whether such concerns are sufficiently serious for suppliers to justify not signing the new General Criminal Contract.

In summary, the Law Society have taken advice from Andrew Munday QC and the position is that the Law Society cannot advise practitioners not to sign the new contract for three reasons:

1. “The references to CDS Direct in the GCC are by way of explanation only, and to identify work which is not covered by the contract and for which the solicitor will not be paid under this contract. The clauses do not require solicitors to act in any way, let alone in an unlawful way.

2. The references to CDS Direct are peripheral to the main purpose of the contract. They do not go to the heart of the contract, and therefore no court could be expected to find that any problem with these clauses served to render the contract as a whole unlawful.

3. The GCC contains a severability clause at clause 16.13 of the standard terms. The meaning of this clause is that even if all of the arguments about CDS Direct were upheld by a court, and the provisions were found to be unlawful, the only consequence would be that those clauses fell out of the contract and the rest remained intact.”

For further details about this, please visit http://www.lawsociety.org.uk/newsandevents/news/view=newsarticle.law?NEWSID=365194

10th October, 2007: Update on forthcoming LSC bid rounds

Bid rounds are being held in the following categories:

· Family Law

· Family and Social Welfare Law

· Mental Health Law

Tender plans for the forthcoming bid rounds are expected to be available from the LSC on 15 October.

10th October, 2007: Judicial review: Law Society secures expedited Court of Appeal hearing

The Law Society has issued a press release http://www.lawsociety.org.uk/newsandevents/pressreleases/view=newsarticle.law?NEWSID=363954 to express their pleasure that an expedited appeal hearing, chaired by the Lord Chief Justice, is to take place on 15 and 16 October following its legal challenge to the legal aid unified contract. In their press release The Law Society stated:

The judicial review, launched by the Society in February, highlighted the impact of the legal aid changes on access to justice.

At the end of March, solicitors were forced by the Legal Services Commission (LSC) either to sign an unfair contract or leave legal aid. The Society's legal challenge to the contract focused on the right of the LSC to unilaterally amend the contract.

The Society's aim has been to protect the most vulnerable people in society by striving to ensure that we have a legal aid system that provides quality representation and fair access to justice for all.

Andrew Holroyd, Law Society president, said:

'The Law Society is pleased that this matter is being heard quickly as legal aid practitioners need to know where they stand.'

10th October, 2007: Update to Forms Masterpack

A number of forms have been updated or introduced. A full list of the amended and new forms can be found at the following link: http://www.legalservices.gov.uk/civil/cls_newsupdates_6394.asp?page=1

The forms are on the LSC website in the CLS>Forms section.

10th October, 2007: Training CD-ROM

The LSC have issued a training CD-ROM to prepare suppliers for the new LSC Online billing system. Further details can be found at http://www.legalservices.gov.uk/aboutus/whats_new_6710.asp?page=1

10th October, 2007: Family Scheme Q&A

The LSC has published three separate Q&A’s on the family fee schemes. The Q&A’s can be found at the following link:

http://www.legalservices.gov.uk/civil/payrates_schemes.asp

10th October, 2007: LSC call for Peer Reviewers in all categories

The deadline for applications in all civil categories has been extended to 19 October. This includes the Mental Health category which was missed off in the recent Focus article.

The application form and related documents can be found at the following link:

http://www.legalservices.gov.uk/civil/how/5564.asp

10th October, 2007: Changes to the Funding Code

Various changes have been made to the Funding Code as a result of the October 2007 fee schemes and related reforms.

The Decision Making Guidance has now been divided into the following parts:

· General Principles (sections 1-14)

· Family (section 20)

· Exceptional Funding (section 27)

· Other Guidance (Sections 15-19, 21-26 and 28)

10th October, 2007: Where to send non-family work

Changes from 1 October:

If you currently send applications to the Reading office, from 1 October, all non-family applications should be sent to the Newcastle office:

Legal Services Commission
2-8 Fenkle Street
Newcastle-upon-Tyne
NE1 5RU
DX 61005 Newcastle-upon-Tyne 1

If you currently send applications to the Brighton office, from 1 October, all no-family applications should be sent to the Nottingham office:

Legal Services Commission
2nd Floor, Fothergill House
16 King Street
Nottingham
NG1 2AS
DX 10035 Nottingham 1

10th October, 2007: Presentation from recent training available

The slides from the recent training are now available. The training covered the following areas:

·Family fee schemes

Funding Code changes

How to claim fees

Online services

Key Performance Indicators (KPI’s)

The slides can be accessed at the following link:

http://www.legalservices.gov.uk/civil/Training-presentation_270907.pdf

10th October, 2007: SRA introduce new system of concluding investigations by agreement

The Solicitors Regulation Authority (SRA) has introduced a new system of concluding some investigations by agreement with solicitors.

For the first time, the written agreements will give details of an investigation and its findings. This could include solicitors agreeing to come off the roll permanently or for specified periods of time. Solicitors will be expected to admit their failings and promise to improve their performance. Examples of possible agreements include:

- where there has been a system failure within a firm, rather than a culpable individual failure, and it is clear that the problem has been addressed;
- where a failure in supervision within a firm has contributed to misconduct by an individual who is no longer in the firm;
- where solicitors have failed to spot conflicts of interest but agree to better procedures with training and verification.
Agreements will normally be made public.

The SRA has also made available on its website a draft statement on the SRA's regulatory settlement agreements. A PDF version of the document is attached for your information.

Further details on these measures can be found on the SRA' website at : http://www.sra.org.uk/news/media/318.article

10th October, 2007: Updated information on fixed fees for GCC Duty Solicitor Schemes (January 2008)

The LSC omitted five Duty Solicitor Schemes from the list of schemes that will subject to a 9.5% reduction in police station fixed fees in their CDS News update released on 29 September.

The five schemes are:

· Leicester

· Southampton

· Portsmouth

· Brighton

· Cardiff

10th October, 2007: New fee scheme for litigators

The response to the graduated fee scheme for Crown Court litigators and the impact assessment has now been published by the LSC.

A calculator has been provided on the LSC website to allow providers to calculate the fees that they could expect to receive under the Litigator Graduated Fee Scheme.

A full copy of the response to the consultations is available at the following link:

http://www.legalservices.gov.uk/docs/cds_main/LGFS-responsetoconsultation_Oct07.pdf

The final impact assessment can be accessed at the following link:

http://www.legalservices.gov.uk/docs/criminal_consultations/LGFS-ImpactAssessmentOct07.pdf

10th October, 2007: Update on VHCC Panel tender results

There has been a delay to the timetable about notification of successful bids. Applicants will now be notified in early December whether or not they have been successful. The panel start date is 14 January 2008.

10th October, 2007: Post Implementation Review of Means Testing published

The LSC has published the Post Implementation Review of the first six months of means testing in the magistrates’ court. The review shows that the introduction of means testing remains on course to deliver the projected annual saving of £35 million.

The review acknowledges that the scheme presented some operational challenges and sets out measures to tackle these issues and improve effeciency.

One of the most significant recommendations was to extend the passporting provisions for youths so all defendants appearing before the youth court and all under 18 year olds appearing before the magistrates’ court will be exempt from the means test. This change will be implemented on 1 November 2007.

The full review can be found at the following link:

http://www.legalservices.gov.uk/docs/cds_main/PIR_021007.pdf

10th October, 2007: Law Society voices significant concerns about the new Criminal Contract

The Law Society has written to the LSC detailing concerns about a number of specific clauses in the contract. Among them include:

“Several clauses appear not to be in compliance with the judicial review judgment. For example, the LSC reserves the right to change aspects of the technical specification.
Several clauses present practical problems for firms. For example, there is an apparent conflict between the obligations imposed on solicitors accepting a case from the DSCC, requiring them to make enquiries of the client, and the obligation not to provide advice and assistance if the client has had previous advice. “
To view a letter from the Law Society President, Andrew Holroyd OBE to Richard Collins, Executive Director for Policy, please click on http://www.lawsociety.org.uk/documents/downloads/dynamic/lettertolscfrompresidentregcc021007.pdf

For further detail about the Law Society’s objections, please go to

http://www.lawsociety.org.uk/documents/downloads/dynamic/lettergcclegalissues021007.pdf

24th September, 2007: Justice Secretary Jack Straw warning to lawyers

Justice Secretary Jack Straw has warned lawyers that the legal aid bill for England and Wales is the highest in the world and has to come down.

He told a fringe meeting at the Labour Party conference in Bournemouth that legal aid costs had risen from £138m in 1980 to £2.2bn two years ago. Mr Straw told the Society of Labour Lawyers it could not be right that in England and Wales £34 was spent per head on legal aid, compared with £10 in New Zealand, £7 in the Irish Republic, £4 in Germany, £3 in France and £1 in Sweden.

He urged the legal profession to help him find out why England and Wales spends so much more than other nations. (Cost of Experts anyone?)

For further details on this story, please visit http://news.bbc.co.uk/1/hi/uk_politics/7009686.stm

21st September, 2007: SRA roadshows

The Solicitors Regulation Authority has been holding a number of roadshows across the country (with more to follow) to enable solicitors to get the latest news about the regulation of their profession and enable them to question the SRA about issues of concern. The presentation team is led by SRA chair Peter Williamson and Chief Executive Antony Townsend. The events will include briefings on the new types of legal business that will be enabled by legislation currently going through Parliament, the new Solicitors' Code of Conduct and the SRA's programme of visits to solicitors' firms.

Next dates

The SRA will visit Newcastle-upon-Tyne on 27 September. The places at the 5.30 p.m. Roadshow have all been reserved so an additional presentation will be given at 2.30 p.m. Both will be held at the Grey Street Hotel, 2 Grey Street, Newcastle-upon-Tyne.

After Newcastle, the SRA plans to visit Liverpool on 21 November and then Bristol and Southampton (dates will be announced by the SRA in due course).

Contact

For further information, please contact the SRA or see their website http://www.sra.org.uk/news/300.article

If you want to attend any of these events, The SRA advise suppliers to contact Richard Parker Email Address

6th September, 2007: LSC Bid Rounds

The LSC has announced that it will be publishing details of bid rounds in early October (the details will be on the LSC's website and in the Law Society Gazette).

The LSC will be holding bid rounds in the following categories of law:

Family Law
Family and Social Welfare Law (SWL)
Mental Health Law.
The LSC is inviting all legal service providers that meet the quality and bid requirements to bid, regardless of whether they currently have a contract.

Further details can be found in a letter from the LSC's Director of Contracting which is published on the LSC's website:

http://www.legalservices.gov.uk/docs/cls_main/bid_round_letter_050907.pdf

Further details will be made available by the LSC in due course and as soon as we become aware of any news, we will update you.

6th September, 2007: General Criminal Contract - Change in Direction

The LSC has announced that it is changing direction in relation to the termination of the General Criminal Contract.

The LSC announced yesterday that it now intends shortly to:

terminate the existing General Criminal Contract with effect from 13 January 2008
run an open process leading to the award of new contracts which will operate for six months from 14 January 2008. The tender process will start towards the end of September 2007
re-allocate duty solicitor work and issue rotas on that basis for the six months of the new contract.
Legal aid reforms for criminal work that were to have been implemented from October will now be incorporated into the new criminal contract which will come into effect from 14 January 2008. These are:

new Police Station fixed fees and revised boundary areas
expansion of the Defence Solicitor Call Centre to ‘own client’ work
expansion of CDS Direct to those elements of ‘own client’ work suitable for telephone advice
introduction of the Very High Cost Case contracting panel (to run for 18 months, as previously announced).
The LSC also intends to introduce the Litigators Graduated Fee Scheme at the same time, subject to the outcome of the consultation.

The LSC intends to introduce the Unified Contract for criminal legal aid services from July 2008. It is proposed that this will continue to run until, subject to consultation, it is replaced by contracts let through a process of Best Value Tendering.

Reason for the change

This change in path arises partly as a result of the recent decision in the judicial review brought against the LSC by the Law Society. The Law Society won their case in relation to the main point, that the Contract is in breach of Public Contracts Regulations 2006 and European Law. The contractual provision enabling the LSC to amend the Contract, insofar as it relates to amendments to the technical specifications of the contract, is in breach of the procurement rules. These technical specifications relate to quality and performance levels and include peer review requirements and key performance indicators, but not fee levels and structures.

The LSC has announced its decision to appeal this decision. It states that it does not agree with the decision on amending the ‘technical specifications’ or with the judge’s interpretation of some aspects of EU and domestic procurement law.

It had been the LSC’s intention to issue a notice of amendment to the existing General Criminal Contract to come into effect during October, in order to implement a number of reforms to the criminal legal aid scheme. However, unlike the civil Unified Contract, the General Criminal Contract was entered into some time before the legal aid reform programme was announced and therefore providers would not have been aware of the proposed reforms at the time they signed. Because of this and the uncertainty arising from the judicial review judgment, the LSC has decided now not to issue this notice of amendment but proceed as set out above.

Full details can be found on the LSC's website by means of a press release: http://www.legalservices.gov.uk/aboutus/press_releases_6258.asp

6th September, 2007: Duty Solicitor Slots Allocation

The LSC confirmed late yesterday that slots for duty solicitors will continue to be allocated from October 2007 using the current system.

This decision was made as a result of the latest consultation on this issue which set out two options for allocating slots for both police station and magistrates’ court schemes. The majority of suppliers apparently favoured the Option A which allows for the present system to continue and slots to be allocated to providers in proportion to the number of qualified duty solicitors they employ.

A majority of respondents opposed Option B which allowed for a fixed allocation of slots, depending on the number to which providers were entitled on 1 July 2007.

The duty rotas will operate from October to January 2008. These rotas will be fixed until the termination date of the current contract.

New rotas will be issued when new contracts commence in January 2008. These rotas will be fixed for 6 months to take firms up to the move to the Unified Contract next July. Slots will be allocated in January on the basis of duty solicitors.

New entrants

In light of the decision to continue with the current method of allocation, no special provisions were felt to be needed for new entrants. The LSC state that providers that enter the market will be able to access duty solicitor work by employing the appropriately qualified staff.

Disadvantaged suppliers

The consultation paper also asked whether the LSC should allocate additional slots to providers who were disadvantaged by an aborted decision earlier this year to allocate slots according to historical volume. Apparently, a majority of respondents were against this proposal and so the LSC will not allocate additional slots to disadvantaged suppliers.

In light of the decision to continue allocating slots by the current method the result is that, from October 2007, providers will be allocated slots in proportion to their current number of duty solicitors.

Allocation in different areas

The consultation paper also asked whether different methods of allocating slots should be used in different areas. Again, a majority of respondents were against this proposal and so the LSC has decided not to vary the allocation method.

Full details can be found on the LSC's website: http://www.legalservices.gov.uk/criminal/cds_newsupdates_6259.asp?page=1

A full copy of the consultation response can be found at: http://www.legalservices.gov.uk/docs/cds_main/SlotAllocationResponse_Sept07.pdf

3rd September, 2007: CDS Regulations

The LSC has announced proposals to amend three sets of Criminal Defence Service (CDS) Regulations as follows:

CDS (General) (No. 2) Regulations 2001 (the General Regulations)
CDS (Financial Eligibility) Regulations 2006 (the Financial Eligibility Regulations)
CDS (Recovery of Defence Costs Orders) 2001.
The amendments are principally in response to concerns raised by defence practitioners, court staff and representative bodies.

General and Financial Eligibility Regulations

For both the General Regulations and the Financial Eligibility Regulations, the LSC is proposing to introduce the amendments on 1 November 2007 after a four-week consultation period (to end on 28 September 2007). A formal consultation document has not been produced for these amendments but further details can be found in the following document:

http://www.legalservices.gov.uk/docs/cds_main/CDS_act_2006_proposed_amendments_300807.pdf

Amending 'passporting' provisions for youth defendants

The LSC has also confirmed that the Post Implementation Review into the introduction of means testing in the magistrates’ courts will be published in the Autumn.

However, the LSC is introducing one of its recommendations to amend ‘passporting’ provisions for youth defendants with other amendments to the CDS Financial Eligibility Regulations, namely the recommendation to extend the ‘passporting’ provisions within the Criminal Defence Service (Financial Eligibility) Regulations 2006 to include all defendants presented to the youth courts and appearing in the adult courts who are under 18 years of age.

CDS (Recovery of Defence Costs Orders) Regulations 2001 - Consultation Paper

The LSC has published a formal consultation paper and draft amending regulations for the proposed amendments to the CDS (Recovery of Defence Costs Orders) Regulations 2001. This consultation paper seeks views on proposals to make changes to the Recovery of Defence Costs Order (RDCO) scheme to enhance its effectiveness and ensure that those defendants who can pay towards the cost of their defence do so.

The consultation period will run for 12 weeks starting on 30 August 2007 and concluding on 21 November 2007.

A copy of the consultation paper can be found on the Ministry of Justice website or by using the following link:

http://www.justice.gov.uk/docs/cp2007.pdf

Further details of all the above can be found on the LSC's website.

30th August, 2007: IT

We have been contacted by some suppliers to say that they haven't received an important email from the LSC about providing the Commission with details about who carries out certain I.T. roles within the firm/agency.

The original email from the Commission is below and the relevant documents are attached: External Roles and Provider Responses

Please note that there was a deadline to reply to online-migration@legalservices.gov.uk by 5PM Friday 31 August:

Dear Sirs,

On 7th August we published an article on upcoming developments to our IT systems as we move the business towards more 'e-enabled' working.

If you have not done so already please read this article by visiting the LSC website at:
http://www.legalservices.gov.uk/aboutus/whats_new.asp. This article will also shortly be published in Focus 54.

As a registered user of LSC Online your firm has been enjoying the benefits of submitting your claims for controlled work electronically.

You currently have the following account/s registered with LSC Online:

You also have the following registered user/s:

We are going to be making a number of improvements to our online system.

These changes will provide your firm with the ability to maintain your own reference and contact data online, giving you greater control over its accuracy. It will also feature automatic calculation of fees, which will ease the transition to the new fee schemes in October 2007 and the ability to view your performance against key performance indicators. To facilitate these changes the online system will now have seven user roles that need assigning to people in your firm.

We are writing to you today because we need to make sure that the correct people are given the correct access levels to the new system.

This is essential if we are to ensure that you are able to continue submitting your claims electronically during this period of transition and enable you to take full advantage of the service.

Please read the attached document entitled 'new user roles' and consider which people in your firm will need which access levels.

Please then complete the attached spreadsheet entitled 'provider responses' and return it to onlinemigration@legalservices.gov.uk by 5pm Friday 31st August 2007. We will ensure that everyone who appears in this spreadsheet will have the correct access levels. Details of existing LSC Online users will only continue to have access if they also appear in the spreadsheet.

If you require any assistance completing the spreadsheet please contact the Marketing team on 0117 302 3117.

If you are unable to provide this information we will automatically set you up with the role of Provider System Administrator and it will be your responsibility to assign roles to people in your firm once the enhanced system is available.

You and your staff will receive all the necessary training and support you need to enable you to use the system effectively and maximise its potential for your firm. All existing online users should find the transition smooth and appreciate the improvements we are making.

We have also been working closely with software vendors to ensure that your internal IT systems are compatible with ours. Vendors have been provided with the necessary specifications for these changes and are busy working on the developments. Guidance will be published for firms who use spreadsheets to manage their cases and smaller firms will be able to continue inputting their claims directly into the online system.

We look forward to hearing from you in the near future.

LSC Online Marketing Team
33-35 Queens Square
Bristol
BS1 4LU
DX: 7852 Bristol

tel: 0117 302 3117

23rd August 2007: SRA Amendment to Rule 18 Solicitors Code of Conduct 2007

On 1 August 2007, the Solicitors Regulation Authority amended Rule 18 to incorporate solicitor’s professional conduct obligations under the recently introduced home information packs regime.

Sub-rule 18.01 has been amended with two new related items of guidance.

Sub-rule 18.01 (2) states:

‘If you are the person who is responsible for marketing a residential property you must comply with any home information packs regulations made under the Housing Act 2004.’

Sub-rule 18.01 (3) (b) goes on to state:

'In 18.01(2) "the person who is responsible for marketing a residential property" has the meaning used in sections 151-153 of the Housing Act 2004.’

The guidance states that a practising solicitor or a person employed by him is exempt from the standards applied to estate agents relating to home information packs on the basis that certain standards are already required of solicitors under the rules of professional conduct rules (in rule 18). The guidance further states:

‘If you are acting for a seller in marketing a property, you have a duty to have a home information pack for the property under the Housing Act 2004. The Home Information Pack Regulations (No. 2) 2007 set out the requirements in relation to home information packs.

Under the Housing Act, enforcement of the Regulations in respect of non-solicitor estate agents is carried out by the Office of Fair Trading. Because of the exemption of solicitors' services from the provisions of the Estate Agents Act 1979, enforcement of the requirements of the Regulations in respect of solicitors is carried out by the Solicitors Regulation Authority. Similarly, the redress scheme operated by the Ombudsman for Estate Agents does not apply to solicitors: redress is provided by the Legal Complaints Service.’

Full details of the rule and the guidance can be found on the SRA's websit or by using the following link:

http://www.sra.org.uk/news/283.article

23rd August, 2007: Fourth Amendment to Criminal Procedure Rules 2005

On the 1st October 2007, the fourth amendment of the Criminal Procedure Rules 2005 will come into force.

The Guide for Court Users, Staff and Practitioners contains all the new provisions and the amendments. It also contains useful information on the background to the changes.

In summary the changes are as follows:

NEW PROVISIONS

1. Part 37 – Summary Trial

A new rule inserted at paragraph 37.6 which sets out the procedure for making an application to change a plea of guilty in summary proceedings.

2. Part 39 – Trial on Indictment

A new rule inserted at 39.3 which sets out the procedure for making an application to change a plea of guilty in a trial on indictment. These are cases dealing with more grave crimes and/or involving more complex issues where people found guilty can receive a lengthy sentence.

3. Parts 65 to 70 - Appeals

Part 65 sets out the general rules that apply to all appeals and references to the Court of Appeal (to which Parts 66 to 70 apply) and makes reference to the rules about active case management.

Part 66 sets out the rules for appeals to the Court of Appeal against a ruling at a preparatory hearing.

Part 67 sets out the rules to be followed when a prosecutor wants to make an appeal against a ruling that was not in their favour.

Part 68 sets out the rules for appeals against conviction or sentence.

Part 69 sets out the procedure to be followed for appeals against reporting or access restrictions.

Part 70 sets out the rules to be followed where the Attorney General wants to refer points of law, or refer a case where the Crown Court has imposed an unduly lenient sentence, to the Court of Appeal.

AMENDMENTS

1. Part 63 – Appeal to the Crown Court

The rules about appeals from a Magistrates’ Court to the Crown Court in Part 63 of the Criminal Procedure Rules 2005 are amended by rules 15 to 25 of these Amendment Rules for two purposes:

(i) To accommodate a prosecutor’s appeal under section 14A (5A) of the Football Spectator’s Act 1989 against a failure to make a football banning order.

(ii) To make clear that any appeal to the Crown Court can be heard with only one Magistrate as well as a Crown Court judge instead of the usual two Magistrates, if to wait for a second Magistrate would cause unreasonable delay.

2. Part 74 – Appeal to the House of Lords

The rules are amended to extend the scope of Part 74 in relation to appeals to the House of Lords to all appeals to the House of Lords from the criminal division of the Court of Appeal. These consequential amendments complete the revision and consolidation of the rules in Parts 65 to 70.

MINOR HOUSE KEEPING AMENDMENTS

There are some minor amendments to other Criminal Procedure Rules, in consequence of the changes to Part 4 – Service of Documents that took effect in April 2007. These amendments affect only the Tables of Contents for Parts 13, 15, 34, 35, 41, 52, 55, 64 and 71.

OTHER NEWS

The Consolidated Criminal Practice Direction

There is to be a further amendment to the Consolidated Criminal Practice Direction – number 16. This amendment will introduce the new forms for use in appeals to the Court of Appeal.

Further information can be found on the Ministry of Justice's website - www.justice.gov.uk.

The guide to the changescan be found by using the following link: http://www.justice.gov.uk/docs/crim-proc-rules-amend2.pdf

22nd August, 2007: 'Whole Scheme Initiatives'

On 7 August, the LSC announced that they would be developing target and action plans for what is referred to by the LSC as ’Whole System Initiatives’.

Yesterday, the LSC released an update on the progress made with their Whole System Initiatives and in particular, provided details of two new initiatives.

The first initiative is in the Family area and is known as the ‘Interviewing Children Scheme’. This scheme has been running in Bath and Bristol for the past two years. The scheme speeds up the process of determining children’s living arrangements when their parents separate making the process smoother for the children involved.

The LSC state that the scheme has achieved a 75% success rate in Bath and Bristol and has the potential to be introduced across the country. Geoff Mountjoy, the LSC’s Regional Director for the South and West, stated that the LSC were pleased to support the initiative as the scheme “puts the best interests of the children first, cutting down the length of the case and making the system simpler which in turn helps to resolve matters quickly and avoid unnecessary acrimony between the separating parents”. He further added that the scheme was beneficial to taxpayers as it would reduce the time take to resolve cases.

The second initiative was the training provided to Duty Solicitors on first appearance extradition hearings. Extradition hearings only take place at the City of Westminster Court. The purpose of the training was to ensure that all defendants are properly represented and that the court uses its time and resources as efficiently as possible. The training was provided by Court staff, the CPS, the Police Extradition Squad and providers.

For further information, please see the LSC's website - http://www.legalservices.gov.uk/aboutus/whats_new_6225.asp?page=1

16th August, 2007: LSC Planned Crime Changes

Please note that the LSC have stated that the planned changes to Police Station Remuneration, Defence Solicitor Call Centre, CDS Direct expansion and implementation of the VHCC panel due to take place on 1 October 2007 have been delayed by two weeks and will now be implemented on 15 October. As previously advised, the new VHCC panel will go live on 1 November.

Further details are available at http://www.legalservices.gov.uk/criminal/cds_newsupdates_6178.asp?page=1

10th August, 2007: Legal Services Commission Annual Report and Accounts 2006/7

The Legal Services Commission (‘LSC’) has published its annual report and accounts for 2006/7 on 8 August 2007. These notes provide a very brief summary of some of the key points raised in the report. A full copy of the published annual report can be accessed from the LSC’s website or by copying the following link into your internet browser:

http://www.legalservices.gov.uk/docs/about_us_main/56543TSOLegalServicesRpt_WEB.pdf

The Legal Services Commission released their annual report and accounts for 2006/7 on 8 August 2007. The report details the Commission’s key achievements and performance against the corporate targets set out in their Corporate Plan.

The report begins with a review from the Chair, Sir Michael Bichard. In the review, Sir Michael states that in the financial year 2006/07, over 2.5 million acts of advice and assistance have been funded through the Community Legal Service and Criminal Defence Service.

The report then lists the four corporate priorities for 2006/7 which were:

• To ensure legal aid clients have access to quality services which meet their needs.
• To work with service providers who provide quality, value for money and client focused services, in whom they have sufficient trust to liberate them to deliver.
• To deliver a sustainable scheme within the resources available and demonstrate real value to government in terms of effective financial control, improving value for money and positive outcomes for clients.
• To transform the organisation to enable it to deliver these objectives and excellence in all that it does.

In the financial year 2006/7 the report states that 12 out of 13 corporate targets were achieved.

The Commission also refer to a detailed statistical analysis of their work. The statistical report is available on the LSC’s website or by copying the following link into your internet browser:

http://www.legalservices.gov.uk/docs/about_us_main/Webstats0607.pdf

This report provides the information on CLS, CDS and PDS work. The information includes the number of contracts held in controlled work categories, controlled work matter starts, outcomes reported in controlled work cases, services provided to suspects who had not yet been charged, services provide to defendants who had been charged, exceptional funding applications determined. A full list is available on page 2 of the report.

The Commission then discuss their Corporate Plan for 2007/8 – 2009/10. The full report is available on the LSC’s website or by copying the following link into your internet browser:

http://www.legalservices.gov.uk/docs/about_us_main/LSC_corporate_plan_300307.pdf

The Commission’s vision, as set out in the 2007/8- 2009/10 Corporate Plan, is to ‘be resolutely focused on clients, delivering positive outcomes and providing value for money’. Four strategic objectives have been developed for 2007/8 - 2009/10:

• An affordable scheme delivered within the resources available and that demonstrates effective financial control.
• A transformed organisation that enables the delivery of objectives and excellence in all it does.
• Clients have access to quality services that meet their needs.
• Providers deliver quality, value for money and client focussed services
  
  

9th August, 2007: Law Scoiety's Challenge of the Unified Contract

Following the Society's High Court challenge of the Unified Contract (in which the Society successfully challenged that aspect of the Unified Contract which purports to confer a wide unilateral power of amendment on the LSC), the Society's President has written to Jack Straw, the Lord Chancellor and Secretary of State for Justice, to ask him to urge the LSC to re-consider its position in the light of the Judgment.

The LSC had published on its website (by way of a reaction to the Judgment) an indication that it proposes to go ahead despite having only partially succeeded in defending its actions. The Law Society is concerned that, if this occurs, it is highly likely that this will give rise to further urgent court challenges and that the LSC will be at very great risk of again being found to have acted unlawfully if it seeks to bring in such changes.

The Society state that they would much prefer to discuss the issues which arise before the amendments are published and, in this letter, ask the government to consult with the Society on behalf of the profession on how such change can be better managed for the benefit of all.

A copy of the letter (and a letter sent to the LSC to make them aware of this action) can be found on the Law Society's website or by using the following links:

http://www.lawsociety.org.uk/documents/downloads/dynamic/lettertojackstraw070807.pdf

http://www.lawsociety.org.uk/documents/downloads/dynamic/lettertolsc070807.pdf

3rd August, 2007: SRA stipulates two minimum salary levels

Each year, the Solicitors' Regulation Authority (SRA) stipulates two minimum salary levels—one for trainees working in Central London and another for trainees working elsewhere in England and Wales. Similarly, the SRA specifies two recommended salary levels.

The minimum and recommended trainee salary levels for the 12-month period beginning 1 August 2007 have been announced and are as follows:

Central London

Minimum salary—£17,660 pa
Recommended salary—£18,090 pa

Elsewhere

Minimum salary—£15,820 pa
Recommended salary—£16,100 pa

If you require any further information or advice, you should consult the SRA. Their contact details are as follows:

· Telephone - 0870 606 2555 (inside the UK), 09.00 to 17.00, Monday to Friday

· Email - info.services@sra.org.uk

· Address - Solicitors Regulation Authority, Ipsley Court, Berrington Close, Redditch, B98 0TD

3rd August, 2007: Tender for a publicly-funded Community Legal Advice Centre in Leicester

A tender was launched this week for a publicly-funded Community Legal Advice Centre in Leicester.

This is a joint funding initiative between the Legal Services Commission (LSC) and Leicester City Council and there is a total budget of £2.7 million for three years to provide the service. The centre will bring together civil legal aid funded by the LSC with social welfare service funding contributed by the Council. Residents visiting the centre will be able to get legal help and representation for a range of social welfare and family problems at the same time.

Tenders are invited from organisations, or groups of organisations working together, who can supply general and specialist legal advice and representation in social welfare and family law. Applicants must be able to set up and deliver services within the city of Leicester that are fully accessible and conveniently located, together with appropriate outreach venues to ensure access to advice.

Leicester City Council and the LSC will jointly decide on the successful bid at the end of October with a view to opening the centre in April 2008.

Bids:

Interested parties have from 30 July, until 1pm on Monday 22 October, to submit a full tender.

Further information is available from the Leicester City Council website - http://www.leicester.gov.uk/your-council--services/advice-and-benefits/legal-advice/community-legal . Copies of the application form and information sheets are attached for your convenience.

2nd August, 2007: Q&A Mental Health Scheme

In response to questions from providers, the LSC has published yesterday a Questions & Answers document about the Mental Health fee scheme and has said that it will update it regularly as new questions are posed.

Suppliers may submit questions on the fee scheme to the LSC by email to: yourquestions@legalservices.gov.uk

Please use the following link to view the latest version of the Q&A document:

http://www.legalservices.gov.uk/docs/civil_consultations/Mental_Health_Fee_Scheme_Questions_and_Answers_20th_July.pdf

Further information can be found on the LSC's website, or by using the following link:

http://www.legalservices.gov.uk/civil/remuneration/mental_health_standard_fee_scheme.asp

2nd August, 2007: Law Society - Judicial Review Update

There has been a flurry of activity over the past couple of weeks in relation to proposed Judicial Review actions against the Legal Services Commission. We have tried to keep you up to date as matters have progressed in each action but by way of an overall summary, we summarise the current position:

Right to Unilaterally amend the Unified Contract

Judgment on this matter was made on 27 July. The Law Society were successful in this case as the Judge ordered that unilaterally amending the contract was not compatible with regulations 9(2), 9(4) and 9(7) of the Public Contracts Regulations 2006. The Law Society’s press release made clear that they were very happy with this result. The LSC also issued a Press Release also appearing to claim victory ‘welcoming the judgment.’ Reading both press releases together, it is somewhat difficult to believe that the same case is being discussed.

However, in short, the Law Society won their case in relation to the main point, that the Contract is in breach of Public Contracts Regulations 2006 and European Law. The contractual provision enabling the LSC to amend the Contract, insofar as it relates to amendments to the technical specifications of the contract, is in breach of the procurement rules. These technical specifications relate to quality and performance levels and include peer review requirements and key performance indicators, but not fee levels and structures. The Judge wouldn’t go as far as preventing the fixed fees from being implemented in October, although he did give the Law Society permission to appeal on the basis of public interest on this point.

Asylum & Immigration scheme

This case, amongst other things, was about an alleged failure to consult properly. The Law Society threatened judicial review proceedings in May 2007. Based upon information published by the LSC on their website http://www.legal services.gov.uk/aboutus/judicial_review_tabular_update_270707.pdf , this case appears to have been withdrawn following the LSC’s reply to the Law Society’s pre-action letter. Certainly, the Law Society does not appear to have issued the threatened proceedings.

Very High Cost Cases Panel (Crime)

The Law Society withdrew its proposed action in relation to the LSC’s proposals for very high cost cases (VHCC), after the LSC provided it with information that it required in relation to those plans. The Law Society confirmed in June that it had written to the LSC threatening judicial review proceedings on the issue of the proposed best value tendering process for VHCCs. The Society had originally called for the implementation of VHCC panels to be delayed pending further consultation and a race equality impact assessment.

The removal of Travel and Waiting from fees paid for Magistrates Courts Work in Urban areas

As previously advised, actions had been brought by the Law Society and a separate group of solicitors in Kingston-upon-Hull over the LSC’s proposals on payment for work done in magistrates’ courts. Subsequently, action was also brought on similar grounds by a separate group of solicitors in Portsmouth. Solicitors in the two areas of Kingston-Upon Hull and Portsmouth claimed that the payment regimes were unfair and would have caused them losses. However, the actions brought by the Hull and Portsmouth firms were both rejected by the Courts at first instance.

The claimants have since renewed their applications for permission to judicially review the LSC and this is likely to be heard in September.

This challenge does not affect the rest of England and Wales where the revised fees have been in operation since April 2007.

Action Brought by the Black Solicitors Network (BSN) and the Society of Asian Lawyers (SAL)

BSN and SAL hadbrought judicial review proceedings to challenge the LSC’s failure to carry out a full race equality impact assessment of the changes to implement Lord Carter’s proposals.

BSN and SAL had argued that the reforms had the potential to impact adversely on black and minority ethnic (BME) communities and legal aid suppliers and had asked the government to carry out a proper assessment of the impact of these proposals upon minority communities and upon the minority lawyers who provide legal services for these communities.

With the support of the Law Society, BSN and SAL jointly launched judicial review proceedings against the LSC and the Government arguing that there had been a failure to carry out a proper race equality impact assessment under the Race Relations Act 1976 in relation to the legal aid proposals for the CDS. Both the Law Society and the Commission for Racial Equality joined the action as intervening parties.

The case has now been heard. The Law Society have announced that following an adjournment by the judge, a constructive dialogue between the parties began which led to a settlement by consent order. As part of the settlement, the LSC committed to undertake a consultation and full cumulative Race Equality Impact Assessment on the principle of Best Value Tendering (BVT). It also committed to undertake a retrospective cumulative Race Equality Impact Assessment on the main reform changes already, or about to be, implemented for the Criminal Defence Service (i.e. magistrates’ courts fees, very high costs cases and police station work). In undertaking these assessments the government made a significant concession. It agreed to have due regard to the Commission for Racial Equality’s code and guidance on conducting race equality impact assessments.

27th July, 2007: The Law Society’s judicial review of the LSC’s decision to issue the Unified Contract - Judgment in favour of the Law Society

The Law Society's challenge against the LSC in relation to the amendment provisions in the Unified Contract was upheld today. The Law Society has announced that the Court has held that the LSC has breached the Public Contracts Regulations 2006 and European Law.

Background to the claim

On 20th April 2007, as well as simultaneously proposing a two-day mediation, the Law Society issued judicial review proceedings against the LSC based on the premise that the amendment clause (the LSC's reserved right to unilaterally amend the Contract - clause 13.1) in the Unified Contract puts the LSC in breach of procurement regulations.

The decision:

The proceedings were heard before Mr Justice Beatson in the High Court.

The result of the challenge is that the following declaration has been made:

'A declaration that the rights of the LSC to amend the Unified Contract referred to in clause 13.1 of that contract (other than amendments permitted under clause 13.2) are incompatible with regulations 9(2), 9(4) and 9(7) of the Public Contracts Regulations 2006 in so far as they are applicable to technical specifications (as defined in regulation 9(1) of those Regulations).'

Mr justice Beatson said that changes to the contract should not be made if they would, 'alter the economic balance of the contract to the disadvantage of those who have entered into the Unified Contract or to the disadvantage of some of them.'

The judge also noted that any proposed changes should be restricted to those envisaged by the initial White Paper. It is not clear at this stage how this will affect the LSC's proposals on fees and the Judge has granted the Law Society permission to appeal on the basis of public interest on this point.

The Law Society were also awarded 75% of costs.

We understand that the firm of Dexter Montague were also successful in allied proceedings.

27th July, 2007: Unified Contract Draft Specification

In an earlier update, I advised that the LSC had released the latest draft of the Unified Contract Specification. This draft is subject to further amendments before formal notice is given to providers. However, the LSC say that it envisages that any amendments will be minor and will not alter the substantive content

Please find attached a summary of the latest draft of the Civil Specification – General Provisions together with a summary of the chapters of the Specification relating to Debt, Employment, Housing and Welfare Benefits.

For further information or to obtain full copies of the draft Specification, you are referred to the LSC’s website. Alternatively, you may click on the following links or copy them into your internet browser:

http://www.legalservices.gov.uk/docs/civil_contracting/070712_General_Provisions.pdf

http://www.legalservices.gov.uk/docs/civil_contracting/070712_MiscellaneousCategorySpecification.pdf

27th July, 2007: Judicial Review

On Friday 22 July, one of our clients, Traymans Solicitors, successfully argued in the High Court that the Legal Services Commission acted unlawfully when interpreting the meaning of ‘rent payable’ when assessing an application for public funding (legal aid).

This was an important case because it concerns how applications for legal aid are assessed. The case was heard at the same time with another similar matter brought by Southwark Law Centre who were also successful.

Please see the attached Press Release from Traymans for details of the case.

24th July, 2007: Law Society - Judicial Review Update

It was reported last week that three judicial review actions against the LSC have come to an end.

VHCC

The Law Society withdrew its proposed action in relation to the LSC’s proposals for very high cost cases (VHCC), after the LSC provided it with information that it required in relation to those plans.

The Law Society confirmed in June that it had written to the LSC threatening judicial review proceedings on the issue of the proposed best value tendering process for VHCCs. The Society had originally called for the implementation of VHCC panels to be delayed pending further consultation and a race equality impact assessment.

As noted in the Gazette, the Law Society chief executive Des Hudson said in relation to this action: "The Law Society is pursuing a robust litigation strategy to hold the LSC to account and to require them to produce information that we all need if we are to understand the impact of their planned reforms." Further, he said that: "[the Law Society is] pleased the LSC has produced the information that we required and that we have now achieved our objective; however, it is extremely regrettable that the LSC did not produce this earlier.’

The removal of Travel and Waiting from fees paid for Magistrates Courts Work in Urban areas

As advised in June, actions had been brought by the Law Society and a separate group of solicitors in Kingston-upon-Hull over the LSC’s proposals on payment for work done in magistrates’ courts. Subsequently, action was also brought on similar grounds by a separate group of solicitors in Portsmouth. Solicitors in the two areas of Kingston-Upon Hull and Portsmouth claimed that the payment regimes were unfair and would have caused them losses.

For further detail on the claim brought by the Hull firms, please see our earlier updates:

From an update in May 2007:

In relation to an earlier letter before action (civil) unified contract, the Law Society are not content with the LSC’s response and have therefore issued further proceedings. Attached are the following documents:

(i) Application for Judicial Review (Urgent Consideration) dated 20/04/07

(ii) Law Society letter to LSC dated 20/04/07 offering to meet with professional mediators

(iii) Letter to LSC dated 20/04/07 about application for urgent Judicial Review

(iv) Copy of Judicial Review claim form

Judicial review of travel and waiting time

However, last week, the Gazette reported that the actions brought by the Hull and Portsmouth firms were both rejected by the Courts at first instance. We are awaiting further details.

The Law Society had not been actively pursuing their action. At the time the action was brought by the Kingston-upon-Hull firms, although not officially backing down from their threatened action about the scheme as a whole, the Law Society's stated position was that should the LSC take the opportunity to reconsider the position in relation to Hull and to engage in a meaningful discussion (or independent mediation) with the Hull firms and to show an open mind about the situation in Humberside, it would go some way to alleviating the Law Society’s serious concerns about the overall scheme. The Law Society's current position is unknown and we will keep you updated.

Action brought by the Black Solicitors Network (BSN) and Society of Asian Lawyers (SAL)

There has been a positive result to the action which had been brought by the BSN and the SAL.

BSN and SAL had brought judicial review proceedings to challenge the LSC’s failure to carry out a full race equality impact assessment of the changes to implement Lord Carter’s proposals.

BSN and SAL had argued that the reforms had the potential to impact adversely on black and minority ethnic (BME) communities and legal aid suppliers and had asked the government to carry out a proper assessment of the impact of these proposals upon minority communities and upon the minority lawyers who provide legal services for these communities.

With the support of the Law Society, BSN and SAL jointly launched judicial review proceedings against the LSC and the government arguing that there had been a failure to carry out a proper race equality impact assessment under the Race Relations Act 1976 in relation to the legal aid proposals for the Criminal Defence Service. Both the Law Society and the Commission for Racial Equality joined in the action as intervening parties.

The case was heard last week. The Law Society have announced that following an adjournment by the judge, a constructive dialogue between the parties began which led to a settlement by consent order. As part of the settlement, the LSC committed to undertake a consultation and full cumulative Race Equality Impact Assessment on the principle of Best Value Tendering (BVT). It also committed to undertake a retrospective cumulative Race Equality Impact Assessment on the main reform changes already, or about to be, implemented for the Criminal Defence Service (i.e. magistrates’ courts fees, very high costs cases and police station work). In undertaking these assessments the government made a significant concession. It agreed to have due regard to the Commission for Racial Equality’s code and guidance on conducting race equality impact assessments.

For further details, please see the Law Society's press release of 20th July, a link to which can be found below:

http://www.lawsociety.org.uk/newsandevents/pressreleases/view=newsarticle.law?NEWSID=349716

On 12th July, MPs debated the report of the Constitutional Affairs Committee on the Carter Review of Legal Aid, and the Government's recently published response. The Law Society had been actively lobbying MPs ahead of the debate, and had been asking practitioners to lobby their MPs ahead of the debate.

Please find attached a summary of the matters debated. A full transcript of the debate can be found on the Law Society's website or by using the following link:

http://www.publications.parliament.uk/pa/cm200607/cmhansrd/cm070712/halltext/70712h0001.htm#07071271000002

Early Day Motion

The Law Society has secured another Early Day Motion in Parliament, concerning the proposed regulations to introduce fixed and graduated fees for civil, family and immigration legal aid work. The motion calls on the government to postpone the regulations and meet with all stakeholders to find an alternative future for legal aid.

The Society are asking practitioners to encourage their MPs to sign the EDM 1961 (as set out below)before Parliament rises on 26 July.

"EDM 1961 - LEGAL AID REGULATIONS

19.07.2007, Keith Vaz

That this House notes the Government's intention imminently to lay The Community Legal Service (Costs) (Amendment) Regulations 2007, The Community Legal Service (Funding) (Counsel in Family Proceedings) (Amendment) Order 2007, The Community Legal Service (Financial) (Amendment No. 2) Regulations 2007 and The Community Legal Service (Funding) Order 2007; expresses deep concern that, despite widespread anxiety about the effect of the regulations on the part of the legal profession, among voluntary and not-for-profit providers and across all sides of the House, they are set to come into force on 1st October and will therefore be laid without any opportunity for Parliament to debate them in advance; calls on the Government to delay the coming into force of the regulations to allow time for Parliament, if it so desires, to debate the regulations before they take effect; and urges the Government to invite all relevant stakeholders to a meeting to discuss an alternative approach to legal aid, which continues to meet the Government's requirements, but does not threaten the sustainability of legal aid nor access to justice for vulnerable people."

Revised funding Code - Debate

The House of Lords will today (24th July) debate a report from the 5 July of the Select Committee on the Merits of Statutory Instruments commenting on the Revised Funding Code. The Law Society considers that the government's proposals for a Revised Funding Code pose a further threat to the viability of firms because it will impose fixed fees en route to tendering, before firms are able to change the case mix. The Law Society's position is that failure of firms will dilute expertise, and disrupt or destroy supply in some areas.

18th July, 2007: Unified Contract Specification

This morning the LSC released the Unified Contract Specification.

In the accompanying Press Release, the LSC commented that this is a draft version subject to further amendements. However, they go on to say that they envisage that any changes will be minor and not alter the substantive content.

The Specification consists of both general and category specific provisions. The Commission says that the Immigration and Family Sections will be published shortly while the Mental Health section and the Family Mediation specification are under consultation.

The specification may be downloaded from here: http://www.legalservices.gov.uk/civil/unified_contract.asp

Our precis of the specification will follow later.

12th July, 2007: Fee Structure Tables

In response to negative feedback and in particular, that some providers were finding the new fee information difficult to find, the LSC has published separate fee structure tables for:

The Care Proceedings Graduated Fee Scheme
The Family Help – Private Fee Scheme
The Family Mediation Fee Scheme
The Mental Health Fee Scheme.
The tables set out what the LSC will pay for cases when the new schemes are introduced and aim to help providers to access key information more easily.

The new fee tables are available on the LSC website at http://www.legalservices.gov.uk/civil/cls_newsupdates_5921.asp?page=1 or by clicking on the link below.

Care Proceedings Graduated Fee Scheme

http://www.legalservices.gov.uk/docs/cls_main/FeesStructureFamPub4Jul07.pdf

Family Help (Private) Fee Scheme

http://www.legalservices.gov.uk/docs/cls_main/FeesStructureFamPrivate4Jul07.pdf

Family Mediation Fee Scheme

http://www.legalservices.gov.uk/docs/cls_main/FeesStructureMediation4Jul07.pdf

Mental Health Fee Scheme

http://www.legalservices.gov.uk/docs/cls_main/FeesStructureMH4Jul07.pdf

12th July, 2007: Care Proceedings: local initiatives

Sir Mark Potter, the President of the Family Division of the judiciary has announced a number of initiatives relating to changes in the Judicial Case Management Protocol for public law Children Act cases.

The President plans to replace the current Protocol for Judicial Case Management in Public Law Children Act Cases, which sets out the different stages of the court process as care cases progress through the system, with a new streamlined Public Law Outline (PLO) from April 2008. This will be underpinned by revised statutory guidance to local authorities (Volume 1 ‘Court Orders’ of the Children Act 1989 guidance), which will be available from the autumn.

Initiative Areas

Elements of the new PLO have already been tested in three court centres – Liverpool, London and Portsmouth. It has been announced that the new processes set out in the draft PLO will now be tested in 10 centres, starting over the next few weeks and months. In addition to Liverpool, London and Portsmouth, this will now include: Birmingham, Leicester, Newcastle, Oxford/Milton Keynes, Plymouth/Exeter, Swansea and Warrington. Feedback from these centres, together with the outcomes of a consultation with key stakeholders on the PLO between June and September 2007, will help to inform the production of a final version, to be implemented nationally from April 2008.

The main changes

The main changes in the new PLO are as follows:

Local authorities will be expected to submit better applications to the court, ensuring all kinship options have been fully explored and all relevant assessments are completed before applications are made to the court.
The process will be more streamlined so that the six stages under the current Protocol will be reduced to four stages, with more emphasis on pre-proceedings preparation:

1) Issue and First Appointment in the FPC to allocate and give initial case management directions

2) Advocates discussion and Case Management Conference (CMC) to identify issues and give full case management directions

3) Advocates discussion and Issues Resolution Hearing (IRH) to resolve and narrow issues and identify any remaining issues

4) Hearing to determine remaining issues

The timetable for progressing the case will be agreed by the judge and parties involved in proceedings, according to the needs of the child involved. All cases will be listed in accordance with these individual timetables. It is expected that through effective case management which narrows the evidence to relevant issues, these individual timetables will normally be less than the former benchmark of 40 weeks.

There will be new case management imperatives through the identification of key issues and in ensuring advocates discuss the issues in advance of any hearing.

A final hearing date will not be set until the issues in the case have been agreed and narrowed down. This will ensure the final hearing is more focused on only the fundamental issues in any case.
What will happen to the current Protocol and cases already in the system?

The draft PLO will not apply retrospectively. Therefore all cases issued after implementation of the initiative locally should follow the processes under the draft PLO. The current Protocol will continue to be applicable to applications made before this point.

Further Information

The President of the Family Division of the Judiciary has explained the background to the initiative in a letter which is available on the LSC's website. A full list of the ‘initiative courts’ and local authorities likely to be affected by the initiative is annexed to the President's letter together with the current draft of the new PLO. Further detail is set out in a questions and answers document. Copies of both documents can be found on the LSC website or by copying the following links into your browser.

http://www.legalservices.gov.uk/docs/fains_and_mediation/DfESletterCareProceedings.pdf

http://www.legalservices.gov.uk/docs/fains_and_mediation/FAQs25Mayfinal.pdf

12th July, 2007: Peer Review Quality Guide

The Family Peer Review Panel and Institute of Advanced Legal Studies have published ‘Improving your Quality Family Guide’ that details common quality issues identified by Peer Reviewers. This is required reading for all Family Practitioners.

Retainer clients will shortly receive updated file review forms which incorporate some of the report’s findings.

Further Information

To download the quality guide, please click on the following link:

http://www.legalservices.gov.uk/docs/cls_main/Family_Guide_Brochure_To_print_29_June_07_gt.pdf

Statement by Family Peer Reviewers

A letter written by a group of Family Peer Reviewers has today been published in the Law Society Gazette expressing ‘serious reservations whether the standard and quality of work that they are looking for can be maintained under the proposed new Family Fees’. The letter can be found on Page 15 and should shortly be available on their website http://www.lawgazette.co.uk/opinions/letters.law

In response a spokeswoman from the LSC (source: Gazette Page 3, 12 July 07), stated that “Higher quality is often no more expensive and in many cases higher quality costs less than average quality, as shown in the peer review data published in the regulatory impact assessment that accompanied ‘Legal aid reform: the way ahead.’

12th July, 2007: Launch of the report 'Developing Capable Citizens: the role of Public Legal Education' by the Public Legal Education and Support (PLEAS) Task Force

Speaking during the launch of the report 'Developing Capable Citizens: the role of Public Legal Education' by the Public Legal Education and Support (PLEAS) Task Force , Lord Hunt, the new Legal Aid Minister, said knowledge about the law can change lives, improve life chances and enable active participation in democracy and that acknowledged Public legal education is vital in providing access to justice by making people aware of their rights and responsibilities.

The PLEAS Task Force was established in January 2006 and is chaired by Professor Dame Hazel Genn DBE QC. Task Force members had been appointed from a range of organisations and sectors involved or interested in public legal education. These members include representatives from Advice Services Alliance; Citizens Advice; the Citizenship Foundation; Legal Action Group; the Disability Rights Commission; the Bar Council; the Office of Fair Trading and the Legal Services Commission.

At the recent launch, Lord Hunt said that:

"The Task Force has set out the case for increasing the availability of public legal education, developing good practice, improving evaluation, and longer-term funding."

Further he said:

"I will now discuss with colleagues in government how best we can overcome the obstacles to effective public legal education."

and:

"If we're serious about tackling inequality, then we all need to provide the right education, information, support at an early stage in appropriate ways."

For more information about the PLEAS Task Force and the full reports, please visit the PLEAS Task Force website: http://www.pleas.org.uk

A copy of the PLEAS report can be found by clicking on this link or copying it into your browser:

http://www.pleas.org.uk/uploads/PLEAS%20Task%20Force%20Report.pdf

11th July, 2007: Consultation on Part 6 Civil Procedure Rules 1998

The Ministry of Justice has issued a consultation paper on Part 6 of the Civil Procedure Rules 1998 (CPR) relating to the service of documents.

The consultation paper seeks views on proposals to simplify the rules in Part 6 of the CPR on service of documents within the jurisdiction and for service out of the jurisdiction.

The paper seeks views on a number of issues, including:

• Last known address - where the claimant knows that the defendant no longer resides at the last known address, whether they should be required to make reasonable enquiries as to the current address and consider alternative methods of service;

• Time limit for service of claim form - whether the time limit for serving the claim form should relate to the period within which the claimant must despatch the claim form (rather than effect service);

• Date of deemed service – whether a common date should apply to all methods of service; whether the deemed date of service should always be a business day;

• Method of service – whether service by e-mail should be treated in the same way as service by fax;

• Method of service in Scotland and Northern Ireland - whether documents to be served on an address for service in Scotland or Northern Ireland may be served by a method permitted by the CPR;

• Service by an alternative method - whether the court should be given the power to authorise retrospectively service by an alternative method or at an alternative address in appropriate circumstances;

• Service of Judicial Review proceedings – whether the rules for civil proceedings against the Crown should be applied to judicial review claims against the Crown.

The closing date for responses is 28 September 2007.

A copy of the paper can be downloaded from the Ministry of Justice's website www.justice.gov.uk or by pasting the following link into your browser:

http://www.justice.gov.uk/docs/cp1407.pdf

5th July, 2007: Litigator Graduated Fee Scheme

Please find attached a summary of the Litigator Graduated Fee Scheme Consultation released last week by the LSC. The deadline to respond to the consultation is 7 August 2007.

A full copy of the Fee Scheme can be accessed from the LSC’s website or by copying the following link into your internet browser:

http://www.legalservices.gov.uk/docs/criminal_consultations/lit_fee_scheme_con_doc_260607.pdf

3rd July, 2007: New Legal Aid Minister

Please note that Lord Hunt of Kings Heath OBE is the new Parliamentary Under Secretary of State in the Ministry of Justice with responsibility for Legal Aid, Legal Services Commission, Lords Reform (with Secretary of State) and Departmental Business in the House of Lords.

As a politician, he appears to have kept a rather low profile until he resigned his Junior Health Post in protest at government policy over Iraq. He is a keen Birmingham City supporter.

A short albeit official biography can be found at http://www.justice.gov.uk/about/hunt.htm A more comprehensive biography is at http://news.bbc.co.uk/1/hi/uk_politics/2859749.stm

3rd July, 2007: Consultation on proposed amendments to the General Criminal Contract and Associated Arrangements

On 29th June, the LSC commenced a consultation on proposed amendments to the General Criminal Contract and Associated Arrangements necessary to implement policy changes in October 2007.

The consultation paper includes the proposed amendments to the terms of the General Criminal Contract (for October 2007) in order to cover the following areas:

(1) The introduction of Best Value Panel for Very High Cost Cases - (2A)

The LSC recently consulted on proposals to implement a specialist panel for VHCC (Crime). This document details the proposed amendments to the wording of the GCC to support the creation of this panel and its method of working. It does not contain details of the VHCC panel contracts.

(2) Amendments to the remuneration arrangements for Police Station Attendances (Fixed Fees) - (2B)

The proposals recently consulted on related to:

- The redrawing of boundary areas in which work would be based;
- fixed fees for police station attendances within these boundaries;
- changes to eligibility for contracts for this work; and
- revised working arrangements for the delivery of publicly funded advice and assistance work in police stations and magistrates courts.

As previously summarised, the following proposals were adopted:

Boundary Areas will remain largely the same as previously, with a small number of amendments. Amendments to local schemes will be carried out locally and communicated to providers through Regional Offices. No amendments are required to the General Criminal Contract or Duty Solicitor Arrangements to reflect this policy.

Fixed Fees will be introduced for Police Station Attendance (i.e. publicly funded advice and assistance given at the Police Station) from October 2007, helping the market to prepare and re-structure in advance of the roll out of best value tendering for quality assured services from October 2008. The fees will cover all Police Station Attendance work undertaken on cases, including travel and waiting, although disbursements will continue to be paid separately (this includes work claimable under codes INVC, INVD and INVJ). All other work (except for some own client Police Station Telephone Advice – see 2C below) will continue to be paid under the current system.

A mechanism will be introduced whereby the most expensive Police Station Attendance cases are remunerated under hourly rates on an exceptional cases basis.

Fixed fees will include an amount for availability during the period of duty therefore a separate ‘standby’ payment for Duty Solicitors will no longer be separately claimable.

(3) The expansion of the DSCC to cover all requests for assistance from both Duty and Own Solicitor, and to CDS Direct to provide Telephone Only Advice to all clients - (2C)

The Commission published in march a consultation paper setting out proposals to expand the Duty Solicitor Call Centre and CDS Direct to apply to own client work. As a result of the consultation:

Duty Solicitor Call Centre is to be expanded to deal with all requests from clients detained at the police station for publicly funded criminal legal advice from 1 October 2007. As a consequence of this expansion, from 1 October 2007, the Duty Solicitor Call Centre will be renamed The Defence Solicitor Call Centre.

The expansion of CDS Direct to provide exclusive cover for requests for Police Station Telephone Advice on cases limited to telephone advice only, will take place in two geographical phases. In the initial phase the CDS Direct expansion will cover all requests for telephone only advice within Greater Manchester, West Midlands and West Yorkshire CJS areas from 31 October 2007. In the second phase the CDS Direct service will be expanded to apply to the whole of England and Wales from 31 January 2008.

The LSC accepts that at present firms may receive requests for advice from various sources in own client matters. Under the expanded system all requests for advice must be directed through the DSCC if a claim is going to be made from public funds. It also recognises, however, that there may be exceptional circumstances where this scenario might not be appropriate and is in the process of discussing these situations in detail with representative bodies and the police to agree the way forward.

In the light of the above, this consultation paper sets out alternative clauses to cover this point of policy.

A copy of the paper can be found on the LSC website or by clicking on (or pasting into your browser) the following link:

http://www.legalservices.gov.uk/docs/cds_main/GCCconsultation-October2007.pdf

Responding to the Consultation

The consultation will last for six weeks and closes at 4pm on 9 August 2007.

Responses should be sent:

By email: cds.directorate@legalservices.gov.uk Please add 'GCC Consultation Response' to the subject line.

By post: Sarah Acikgoz (CDS Policy Team)
Legal Services Commission
85 Grays Inn Road
London WC1X 8TX

By fax: 0207 759 1051

You can contact the LSC on cds.directorate@legalservices.gov.uk to obtain further information or answers to particular questions. Please add "GCC Amendments" to the subject line of your email.

3rd July, 2007: Criminal Justice and Immigration Bill

The Criminal Justice and Immigration Bill was introduced last week in the House of Commons. The Bill will take forward the Government's programme of reform of the criminal justice system.

The objective of the Bill is to reduce re-offending and protect the public, provide justice for all and increase confidence in the justice system. It aims to achieve the objective by:

building public confidence in the sentencing framework;
ensuring that prison and probation resources are targeted at repeat, serious and violent offenders;
strengthening the protection of the public from violent offenders;
strengthening the pre-court and community penalties available for young offenders;
strengthening the independence of the Prisons and Probation Ombudsman;
ensuring that the police and their community safety partners have appropriate powers to tackle anti-social behaviour at its roots;
ensuring that the UK does not provide a safe haven for foreign criminals and terrorists.

A copy of the Bill can be found on the Ministry of Justice's website or by clicking on the link below:

http://www.publications.parliament.uk/pa/cm200607/cmbills/130/en/index_130.htm

3rd July, 2007: Family Mediation Specification

Please find attached a summary of the draft Family Mediation Specification released on 29th June. Subject to consultation, this will replace the terms of the existing for profit and not for profit Family Mediation Specifications under the Unified Contract with effect from 1 October 2007.

A full copy of the specification can be accessed from the LSC’s website or by copying the following link into your internet browser:

http://www.legalservices.gov.uk/docs/civil_consultations/070629_draft_family_mediation_specification.pdf

27th June, 2007: Family and Family Mediation Fee Schemes and Changes to the Funding Code

Please find attached a summary of the Final Family and Family Mediation Fee Schemes and Changes to the Funding Code.

The paper sets out the LSC’s intention to introduce, from 1 October 2007:

• Fixed fees for initial advice in all public law family cases and representation in care and supervision proceedings (excluding advocacy) (Levels 1 to 3);
• Fixed fees for initial advice and Family Help (Lower)(Levels 1 and 2) in private law family cases;
• Revised fee arrangements in mediation cases;
• Changes consistent on the Funding Code consultation – including removing residential assessments from the scope of legal aid and a new test for separate representation in care and supervision proceedings.

The LSC is still deciding what it will do with regard to Level 3 in private family. For the meantime, therefore, private law family Level 3 fees will not be implemented on 1 October.

The LSC will also consult later in the year on fees for private law Level 4 (final hearing work), and on bringing public law advocacy within fixed fees.

A full copy of the schemes can be accessed from the LSC’s website or by copying the following link into your internet browser:

http://www.legalservices.gov.uk/docs/civil_consultations/Consultation_response_with_covers.pdf

27th June, 2007: LSC Response to consultation on police station reforms

Please find attached a summary of Legal Services Commission (“LSC”) response to the recent consultation on Police Station reforms.

The summary focuses on the decisions which the LSC has taken as a result of the consultation and the proposals for October 2007 onwards. For information on providers’ responses to the specific questions raised in consultation and the LSC’s response, please view the full paper. Also attached is the annex setting out the level of the fee by

In short, the LSC has taken the following decisions:

• Fixed fees will be introduced for all Police Station attendances from 1 October 2007.
• The level of the fixed fee will depend on the area in which the work is delivered.
• The fixed fee structure includes a mechanism to allow the most expensive cases to 'escape' and be paid at hourly rates once the threshold has been reached.
• Police Station Boundary Areas will remain unchanged from current Duty Solicitor Schemes in the majority of areas.
• The LSC are delaying the decision on introducing a Minimum Contract Threshold.
• A further consultation on slot allocation from October 2007 is being conducted.

A full copy of the response can be accessed from the LSC’s website or by copying the following link into your internet browser:

http://www.legalservices.gov.uk/docs/cds_main/PSResponse180607.pdf

27th June, 2007: Mental Health Fixed Fee Scheme

The Legal Services Commission (‘LSC’) paper has now published the Final Mental Health Fixed Fee Scheme.

Implementation of the Scheme was originally planned for 1 October 2007. Following consultation, the LSC has decided to delay implementation until 1 January 2008. The attached précis summarises some of the more important provisions. Please note that the LSC will be releasing details in July 2007 of bid rounds which it proposes to carry out in areas where it considers supply may be most vulnerable

A full copy of the published Fee Scheme can be accessed from the LSC’s website or by copying the following link into your internet browser:

http://www.legalservices.gov.uk/docs/cls_main/Mental_health_fixed_fees.pdf